92 Decision Citation: BVA 92-22216 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-00 286 ) DATE ) ) ) THE ISSUE Whether the regional office committed clear and unmistakable error in its September 1972 rating decision denying a compensable evaluation for service-connected residuals, sprain, right knee joint. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Wayne A. Tonkins, Associate Counsel INTRODUCTION The veteran has verified active duty service from June 1970 to June 1972. This matter came before the Board on appeal from an August 1991 rating decision of the St. Petersburg, Florida, Regional Office (hereinafter RO). A notice of disagreement was received in September 1991. A statement of the case was issued in November 1991 and a substantive appeal was received that same month. The appeal was received and docketed by the Board in February 1992. The veteran has been represented throughout this appeal by the Paralyzed Veterans of America, Inc. That organization submitted written argument in March 1992. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts the RO committed clear and unmistakable error in its September 1972 rating decision denying a compensable evaluation for service-connected residuals, sprain, right knee joint. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C. § 7104 (1992), following review and consideration of all evidence and material of record in the veteran's claim file, and for the following reasons and basis, it is the decision of the Board that the evidence of record supports a finding that the rating board in September 1972 erred in failing to grant a 10 percent rating for the veteran's service connected right knee disability. FINDINGS OF FACT 1. The veteran's right knee joint injury residuals were manifested by very slight lateral instability when examined by the VA in September 1972. 2. The RO's September 1972 rating decision denying a compensable evaluation for service-connected residuals, sprain, right knee joint was not supported by the evidence then of record. CONCLUSION OF LAW The RO committed clear and unmistakable error in its September 1972 decision in failing to grant a 10 percent evaluation for residuals, sprain, right knee joint. 38 U.S.C. §§ 1155, 5107, 7105(a) (1992); 38 C.F.R. §§ 3.105(a), Part 4, including 4.3, 4.7 and Code 5257 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C. § 5107(a) (1992) and if so, whether the Department of Veterans Affairs has assisted the veteran in properly developing his claim. A well-grounded claim is one which is not implausible. Our review of the record indicates that the veteran's claim is reasonable and that all relevant facts have been properly developed. The veteran advances that the RO committed clear and unmistakable error in its September 1972 decision denying a compensable evaluation for his service-connected residuals, sprain, right knee joint disorder. Generally, an appellant must initiate an appeal by filing a notice of disagreement within one year from the date of the notice of the result of the initial determination. Absent such action, a rating determination is considered to be final and is not subject to review except upon a finding of clear and unmistakable error. Title 38 of the Code of Federal Regulations provides, in pertinent part, that: Previous determinations on which an action was predicated, including decisions of service connection, a degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision.... 38 C.F.R. § 3.105(a) (1991). The United States Court of Veterans Appeals has determined that "clear and unmistakable error" denotes prejudicial error which is undebatably erroneous on its face. Akins v. Derwinski, U.S. Vet.App. 89-115 at 5 (April 23, 1991). The schedule for rating disabilities directs that a 10 percent evaluation will be assigned where service-connected impairment of a knee is manifested by slight impairment of either knee, subluxation or lateral instability. The September 1972 Department of Veterans Affairs examination for compensation purposes, revealed the veteran exhibited a range of motion of the right knee of 0 degrees to 130 degrees and very slight lateral instability. Diagnostic Code 5257 of the aforementioned schedule requires a finding of slight lateral instability of either knee for a 10 percent evaluation. As mentioned previously, the examining physician indicated the presence of very slight lateral instability in the veteran's right knee. However, that is sufficient to establish the level of disability at which a 10 percent evaluation is warranted. Therefore, we conclude that the RO's September 1972 action was not supported by the evidence then of record and was erroneous on its face. ORDER As the RO's September 1972 rating decision constituted clear and unmistakable error, a 10 percent rating for the right knee disability is granted based upon that rating action. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 JEFF MARTIN IRVIN H. PEISER, M.D. E. W. SEERY NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.