Citation Nr: 0209816 Decision Date: 08/14/02 Archive Date: 08/21/02 DOCKET NO. 00-14 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether an April 1986 decision of the Department of Veterans Affairs Regional Office contained clear and unmistakable error. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from October 1966 to July 1968, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2000 decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (the RO) which determined that an April 1986 RO decision did not contain clear and unmistakable error (CUE). Additional issue In his April 29, 2002 brief, the appellant through his representative also challenges on the basis of CUE, for the first time, the unappealed April 1985 termination of his entitlement to a total disability rating based upon individual unemployability (TDIU). In support of his contention that the Board may consider the matter of CUE in the April 1985 RO decision, the appellant's representative has made a bare contention that such issue is "reasonably raised by the record". However, the appellant's brief does not refer to any part of the record which allegedly "reasonably raises" the issue of CUE in the April 1985 TDIU termination, and the Board has identified none. Because the appellant's first-time assertion relative to claimed CUE in the April 1985 rating decision which terminated TDIU has not been addressed by the RO, no decision exists which has been appealed to the Board. The Board is accordingly without jurisdiction to consider the matter, and it is referred to the RO for appropriate action. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C. § 7105, a notice of disagreement initiates appellate review in the VA administrative adjudication]. FINDINGS OF FACT 1. In an April 1986 VA rating decision, the service-connected residuals of a gunshot wound to the left thigh were amended to reflect characterization as involving neuropathy of the sciatic, external popliteal, and posterior tibial nerves, and were assigned disability ratings of 20, 20, and 10 percent, respectively; and as a gunshot wound to the left thigh with atrophic disturbances, assigned a separate 20 percent disability rating. 2. In April 1986, the service-connected residuals of a gunshot wound to the right shoulder were amended to reflect characterization as involving a fracture of the humerus with retained foreign bodies and neuropathy of the right radial nerve, and were each assigned separate disability ratings of 20 percent. 3. The April 1986 rating decision resulted in a reduction of the appellant's combined disability rating from 90 to 70 percent. 4. The appellant was notified of the April 1986 decision and did not file a timely appeal. 5. In the April 1986 rating decision, the RO incorrectly determined that the appellant's right extremity was his minor extremity. 6. With the exception of the erroneous assignment of a 20 percent disability rating for gunshot wound residuals of a fracture of the right humerus, the April 1986 rating decision was consistent with and supported by the applicable law and the evidence then of record. CONCLUSIONS OF LAW 1. The April 1986 failure to assign a 30 percent disability rating for gunshot wound residuals of a fracture of the right (major) humerus constituted clear and unmistakable error. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a) (2001). 2. Apart from the failure to assign a 30 percent disability rating for gunshot wound residuals of a fracture of the right (major) humerus, the April 1986 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant claims that CUE exists in an April 1986 rating decision which reduced his combined disability rating from 90 to 70 percent under 38 C.F.R. § 3.344, and which further found that he was not entitled to special monthly compensation for loss of use of one foot. The appellant through his representative additionally contends that the April 1986 decision is "void ab initio" due to alleged failure to follow proper procedures. The Board has carefully considered the appellant's allegations in light of the evidence of record, the applicable law relative to CUE, and the law generally applicable in 1986. Having done so, the Board does not agree with the appellant's contentions to the effect that CUE existed in the April 1986 RO decision. As will be discussed in detail below, the sum of the appellant's allegations do not point to specific error in the consideration or application of 38 C.F.R. § 3.344, and are instead generalized allegations of failure to follow the regulations or disagreements as to how the evidence was weighed in 1986. Also, for reasons which will be explained below, the Board finds the appellant's argument that the April 1986 RO decision is "void ab initio" to be unsupported by pertinent law. Initial matter - the VCAA During the pendency of this matter, the Veterans Claims Assistance Act of 2000 ("VCAA") was made law, and provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A (West Supp. 2001). Regulations have been implemented in support of the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) [to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. In Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), it was held in part that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions." It was observed that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. A claim of CUE is not by itself a claim for benefits. Thus, CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging such error is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. Thus, a "claimant", as defined by 38 U.S.C.A. § 5100 (West Supp. 2001), cannot encompass a person seeking a revision of a final decision based upon CUE. As a consequence, VA's duties to notify and assist contained in the VCAA are not applicable to CUE motions. Based on the precedential decision of the United States Court of Appeals for Veterans Claims in Livesay, the Board concludes that the appellant's present claim is not subject to the provisions of the VCAA. That being stated, the Board hastens to point out that the appellant has received notice of the RO's action in the June 2000 statement of the case. He and his representative have been accorded ample opportunity to present evidence and argument in support of his CUE claim. The appellant testified at a personal hearing at the RO in August 2000, and his representative filed an extensive brief with the Board in April 2002. The appellant has submitted no additional evidence in connection with his claim and has pointed to no such evidence. As will be discussed below, in this CUE claim the Board's inquiry is essentially limited to review of whatever evidence was of record at the time of the April 1986 RO decision, as well as the contentions advanced by the appellant and his representative. Additional evidentiary development at this point is futile, and the appellant does not appear to contend that such is required. Relevant law and regulations A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified shall become final if an appeal is not perfected. See 38 C.F.R. § 20.1103 (2001). Applicable law further provides that a final decision of a duly constituted rating agency will not be subject to revision. See 38 C.F.R. § 3.104(a). An exception to this rule is when the VA has made a "clear and unmistakable error" in its decision. Under such circumstances, the decision will be reversed or amended, and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. See 38 C.F.R. § 3.105(a). CUE arises in situations where "[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory provisions extant at the time were incorrectly applied." Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313 (1992); see Norris v. West, 12 Vet. App. 413, 419 (1999). 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." Id.; see also Olson v. Brown, 5 Vet. App. 430, 433 (1993); Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). "A determination that there was '[CUE]' must be based on the record and the law that existed at the time of the prior . . . decision. Russell, 3 Vet. App. at 314; see Crippen v. Brown, 9 Vet. App. 412, 418 (1996). The Court has further defined "[CUE]" to mean an administrative error during the adjudication of the claim; that is, the VA's failure to apply correct statutory and regulatory provisions to the correct and relevant facts. See generally Wipprecht v. Derwinski, 2 Vet. App. 131, 132 (1992); Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). "CUE" is more than a difference of opinion. 38 C.F.R. § 3.105(b). The Court has recognized that a claimant seeking to obtain retroactive benefits by proving that the VA has made a "CUE" has a much heavier burden than that placed upon a claimant who attempts to establish his prospective entitlement to benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). It has also been recognized that final RO decisions are entitled to a presumption of validity. Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001). See Berger v. Brown, 10 Vet. App. 166, 169 (1997) [recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of CUE]. For a claim of CUE to succeed, it must be shown that the RO committed an error of law or fact that would compel later reviewers to the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995); Eddy v. Brown, 9 Vet. App. 52, 57 (1996). Factual background The record reflects that service connection was assigned for gunshot wound residuals in a November 1968 VA rating decision, based upon receipt of the appellant's service medical records, reflecting that he sustained gunshot wounds of the right (major) upper arm and left thigh while serving in Vietnam in May 1967. At the time of the challenged April 1986 rating decision, the appellant was in receipt of service connection for two disabilities: (1) residuals of a gunshot wound to the left thigh consisting of sciatic neuropathy and popliteal and tibial nerve impairment and atrophic disturbances, evaluated under the 38 C.F.R. § 4.124a, Diagnostic Code 8520 (1985), pertaining to paralysis of the sciatic nerve, and; (2) residuals of a gunshot wound to the right upper arm (a fracture of the humerus) with retained foreign bodies and a history of radial nerve paralysis, evaluated under 38 C.F.R. § 4.73, Diagnostic Code 5305 (1985), pertaining to the flexor muscles of the elbow. These disabilities were assigned 80 and 20 percent ratings, respectively, with a combined disability rating of 90 percent. The appellant was also in receipt of special monthly compensation under 38 C.F.R. § 3.350(c) (1985) due to the loss of use of one foot. See the RO rating decision dated April 3, 1985. The appellant underwent a VA physical examination in May 1985. Relative to the appellant's left leg, the examiner reported that he had scars of the left thigh that were non- tender, supple and of normal color; that the left leg was 3.5 centimeters smaller in diameter than the right; the left thigh was 3 centimeters smaller than the right thigh. There was no loss of range of motion, no crepitation on movement, and no joint swelling or redness. As to the appellant's right arm, the examiner noted the presence of scars that were not tender, non-binding and of normal hue and did not result in impairment of range of motion or diminution of strength. Because these findings did not account for reports of claimed paralysis, the examination reports were deemed insufficient by the RO and were returned to the VA Medical Center in Iron Mountain, Michigan, the conducting facility, for further examination. However, a December 1985 report of contact reflects that the Iron Mountain VA Medical Center reported that it did not have a neurological specialist on its staff, and it therefore referred the appellant for examination to the VA Medical Center in Milwaukee, Wisconsin. In January 1986, special neurology and orthopedic examinations were conducted at the Milwaukee, Wisconsin VA Medical Center. The following findings were noted: (1) As to the left lower extremity, the examiner noted that the gunshot apparently also struck and partially injured the appellant's left sciatic and external popliteal and posterior tibial nerves. The appellant reported that although he originally had had difficulty in moving his foot, he had regained this ability. He complained of left foot, ankle and knee pain, and that he was unable to stand for long periods of time. He reported that he had an area of numbness along the lateral border of the left foot and some areas of the left calf. Upon clinical examination, a two inch depressed scar was noted on the lateral left thigh, as well as a 41/2 inch surgical scar over the posterior thigh near the knee. The appellant displayed normal range of motion of the left leg, but full extension of the knee joint resulted in pain. The left ankle range of motion was normal. The appellant was diagnosed to have the residuals of a gunshot wound to the left thigh with sciatic neuropathy including external popliteal and posterior tibial nerve with atrophic disturbances. (2) Relative to his right arm gunshot wound residuals, the examiner observed that the bullet caused a fracture of the right humerus, damage to the right radial nerve which caused radial nerve paralysis making movements of the right wrist and hand very difficult. The appellant reported that following surgery, he had regained most of the use of his right upper extremity, but that his grip strength was not as great and that he had remaining numbness of the second, third, and fourth fingers of the right hand. Upon clinical examination, three scars were noted in the right upper arm. The appellant displayed good range of motion of the entire extremity, although the grip strength of the right hand was not as great as that of the left. The examiner noted areas of incomplete numbness between the second, third, and fourth fingers. The appellant was diagnosed to have residuals of a gunshot wound to the right upper arm, including a fracture of the humerus, residual of foreign bodies and the residuals of right radial nerve paralysis. In the April 1986 rating decision now under consideration, the RO reviewed the foregoing medical evidence. The April 1986 decision retained the assigned diagnostic codes for the left thigh paralysis of the sciatic nerve and the right shoulder flexor muscles, 8520 and 5305, respectively. However, because medical evidence also demonstrated that the appellant had a muscle injury to the left thigh with atrophic disturbances, service connection for such disability was granted under 38 C.F.R. § 4.73, Diagnostic Code 5315 (1985). Noting that the appellant also had residuals of missile injuries to his right upper arm and left thigh which caused separate injuries to the right radial nerve and left thigh external popliteal nerve, and an injury to the left thigh resulting in posterior tibial neuropathy, service connection was granted under 38 C.F.R. § 4.124a, Diagnostic Codes 8514, 8521, and 8525 (1985) respectively. The resulting ratings were as follows: Gunshot wound, left thigh with sciatic neuropathy 20% Gunshot wound, right shoulder, fracture of humerus with retained foreign bodies 20% Gunshot wound, left thigh, with atrophic disturbances 20% Shell fragment wounds, right upper arm with neuropathy, right radial nerve 20% Gunshot wounds, left thigh, with neuropathy of external popliteal nerve 20% Gunshot residuals, left thigh, with posterior tibial neuropathy 10% A combined 70 percent disability rating was assigned. The Board observes in passing that this constituted a reduction from the previously assigned 90 percent combined rating. In addition, special monthly compensation under 38 U.S.C. § 314(k) [now 38 U.S.C. § 1114(k)] on account of loss of use of one foot was eliminated. The rating decision stated that "evidence of record does not indicate that the veteran has loss of use of the left lower extremity." The appellant was notified of the decision by letter from the RO dated April 30, 1986. He did not appeal the decision. Analysis The Board has carefully considered the appellant's contentions in light of the law and evidence of record at the time of the April 1986 rating decision. In essence, the RO's April 1986 decision split the appellant's two service-connected disabilities of the left thigh and right upper arm into six separate disabilities. This technique is consistent with VA regulations. See 38 C.F.R. § 4.25(b); cf. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Based on the assignment of the six separate disability ratings for each disorder, the appellant's combined disability rating was reduced from 90 to 70 percent. The appellant does not appear to challenge either the technique employed by the RO or the RO's mechanical calculation of the combined rating. See 38 C.F.R. § 4.25(a). Rather, the appellant generally charges that VA failed to follow the provisions of 38 C.F.R. § 3.344 (1986): (a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and [VA] regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical- industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. . . . . Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. . . (b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added 38 C.F.R. § 3.344 (1985); compare 38 C.F.R. § 3.344 (2001). The appellant argues that in April 1986, the RO: (1) did not consider the entire record of examinations and vocational records to ensure that its record was complete; (2) did not enter a finding whether the examinations were as full and complete as those upon which the initially assigned rating was made; and (3) did not enter a finding as to whether there had been material improvement in the appellant's condition. See appellant's brief, pages 9-10. However, although the appellant facially argues that the RO failed to apply 38 C.F.R. § 3.344, examination of his three-pronged argument reveals instead a basic contention that the RO decision was fatally flawed due to a failure to explain the reasons and bases for its decision. As to his first contention, the appellant has not pointed to evidence which was not considered. Instead, he is in essence arguing that the evidence of record was not properly weighed in accordance with the regulation. In this respect, such a contention is manifestly not CUE. See Russell, 3 Vet. App.313 [observing that for a successful CUE challenge, the appellant "must assert more than just a disagreement as to how the facts were weighed or evaluated"]. As to his second and third contentions both involving the asserted failure to enter what he now deems to be appropriate findings, the appellant has pointed to no regulatory language, statute, or then-caselaw mandating that such specific findings be entered. The specific language in 38 C.F.R. § 3.344 mandates that the entire record of vocational and medical history be reviewed and that reduction will not be made in diseases subject to temporary improvement would not be made absent evidence of sustained improvement. See 38 C.F.R. § 3.344 (1985). Examining the language of the cited regulation, there is nothing in the April 1986 rating decision to indicate that the provisions now relied upon by the appellant were not considered, evidence not weighed, nor findings explained in proper application of the then-applicable law. Specifically, there is nothing in the April 1986 RO rating decision which would indicate that the entire history was not considered. Although it is clear that the RO placed great weight on the January 1986 special VA neurologic and orthopedic examination, disagreement therewith on the part of the appellant amounts to no more than a quarrel over how evidence was weighted, which as discussed above does not amount to CUE. The appellant has not therefore raised valid allegations of CUE. To the extent that the appellant now claims that the RO did not fully explain its findings, he is arguing law enunciated by the Court in 1990 and seeks to apply it to a 1986 rating decision. The Court did not exist in 1986. It was only in Gilbert v. Derwinski, 1 Vet. App. 49 (1990) that the Court set forth the requirement that VA was to clearly articulate the reasons and bases for its findings and conclusions on all material facts and law presented on the record, which was to be sufficient to enable the claimant to understand the precise basis for such decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. Most critically, for his contentions of error in the April 1986 rating decision, the appellant relies heavily upon the Court's ruling in Brown (Kevin) v. Brown, 5 Vet. App. 413 (1993), and cites cases therein, as well as numerous Court cases beginning in 1991 as examples of the Court's rulings concerning the application of 38 C.F.R. § 3.344 [see appellant's brief at 9 and 13]. However, the appellant has not explained how those cases could be applicable to a decision rendered before the Court existed. Moreover, the cited Court decisions did not, in fact, involve claims of CUE and are accordingly inapplicable to the case presently under consideration by the Board. In sum, apart from a broad-based and generalized allegation of failure to follow applicable regulations and adequately explain the reasons and bases for the decision, the appellant has not pointed to any failure on the part of the RO in April 1986 to follow 38 C.F.R. § 3.344. Such generalized allegations are not valid claims of CUE. Moreover, to the extent that the appellant alleges specific CUE in the application of 38 C.F.R. § 3.344, his assertions are unsupported. First, the appellant suggests that the appellant's disabilities should not have been considered for such reduction in 1986 - i.e., that because there were no "examination reports indicating improvement" in the appellant's disabilities, the reduction was clear error. The appellant argues that with the exception of his foot and disability, which he concedes had demonstrated material improvement, the medical evidence before the RO in 1986 was identical to that of 1986. See appellant's brief, page 10. When the findings of September 1968 are contrasted with those of May 1985 and January 1986, it is seen that marked improvement of the entire left lower extremity disability occurred (i.e., not merely the left ankle disability.). The September 1968 VA examinations amply demonstrated that the appellant's primary and most severe disability was his demonstrated left foot drop. As noted, the appellant's left foot was then incapable of passive dorsiflexion; the appellant wore a short left leg brace; left knee flexion was limited to 30 degrees. However, in May 1985 the appellant was able to squat well and walk on his heels and toes - these findings certainly are suggestive of a marked and sustained improvement up until the time of the April 1986 rating decision. At that time, dorsiflexive power was greatly restored, all motion of the lower extremity joints was normal, and such movements were noted to be without crepitation. Specifically as to the 80 percent rating assigned in April 1968 under 38 C.F.R. § 4.124a, Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, such a rating was appropriately assigned when the paralysis was "[c]omplete; the foot dangles and drops, no active movement possible of [the] muscles below the knee, flexion of [the] knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The January 1986 specialized VA examination plainly did not show such symptomatology. Instead, it demonstrated that although there was sciatic nerve damage resulting in difficulty in moving the foot, the appellant had regained such power and that the left ankle range of motion was normal. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, the appellant's left sciatic nerve injury was thus shown to have resulted in far less than "complete" paralysis. Such an alteration in the assigned disability rating was clearly appropriate, when the January 1986 specialized VA examinations are contrasted with those of September 1968, upon which the original rating was assigned. At that time, the appellant complained of left foot and ankle pain when walking. Swelling, limited ankle and knee motion, and left foot drop was noted, and the appellant could not dorsiflex his left foot passively. As noted, a left thigh gunshot wound muscle injury was also noted in April 1968 and for assignment was 38 C.F.R. § 4.73, Diagnostic Code 5315. The appellant was assigned a 20 percent disability rating under this provision for a "moderately severe" disability of the mesial thigh group. The appellant was noted to have left knee stiffness, an inability to stand for prolonged periods of time and normal range of motion but with pain upon full extension of the left knee joint. Given these findings on the most recent VA specialized neurological and orthopedic examination, it cannot be said that the assignment of a 20 percent rating under 38 C.F.R. § 4.73, Diagnostic Code 5315 was CUE. Also assigned were two, separate disability ratings for additional neurological damage. The April 1986 adjudicators noted that both the appellant's external popliteal nerve and posterior tibial nerve had been damaged by the gunshot to his left leg. The January 1986 VA specialized neurological and orthopedic examination had noted left foot numbness and temperature variant pain along the effected areas. Accordingly, a separate rating of 20 percent was assigned under 38 C.F.R. § 4.73, Diagnostic Code 8521 for the neuropathy of the external popliteal nerve; and a 10 percent rating was assigned under Diagnostic Code 8525 for damage to the posterior tibial nerve. However, because medical evidence also demonstrated that the appellant had a muscle injury to the left thigh with atrophic disturbances, service connection was granted under the then- applicable 38 C.F.R. § 4.73, Diagnostic Code 5315. Noting that the appellant also had the residuals of missile injuries to his right upper arm and left thigh which caused separate injuries to the right radial nerve and left thigh external popliteal nerve, and an injury to the left thigh resulting in posterior tibial neuropathy, service connection was granted under the then-applicable 38 C.F.R. § 4.124a, Diagnostic Codes 8514, 8521, and 8525, respectively. In sum, as to the appellant's specific allegation of CUE because of insufficient findings demonstrating material improvement, it cannot be said that the appellant's left lower extremity disorder only had "temporary or episodic improvement" because findings indicating improvement were noted in May 1985 and again in January 1986. The Board observes in passing that the appellant's disability, or one of similar orthopedic or neurological manifestation, was not included within the list of those examples of diseases which could not be reduced upon one examination; those "subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, . . . ulcer, many skin diseases, etc." 38 C.F.R. § 3.344. In any event, the April 1986 adjudicators had for review the results of both a generalized VA examination in May 1985 and a specialized VA orthopedic and neurological examination in January 1986, both noting marked improvement as is detailed above. Right shoulder disability As noted, by rating decision dated in April 1985, the appellant's right (major) upper arm gunshot wound residuals were characterized as including a fracture of the humerus with retained foreign particles and a history of radial nerve paralysis and were then evaluated under the then-applicable 38 C.F.R. § 4.73, Diagnostic Code 5305, pertaining to the flexor muscles of the elbow. Because the presence of a separate neurological disability had been noted, in April 1986, the RO assigned a 20 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8514 for mild paralysis of the radial nerve, and reassessed the appellant's muscle injury as 20 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5305. Although not argued by the appellant, the Board first observes that the RO erroneously found that the appellant's right arm was his minor appendage. This can be observed from examination of the then-applicable 38 C.F.R. § 4.73, Diagnostic Code 5305, which was used for evaluation of injuries to muscle Group V, involving the flexor muscles of the elbow. Under this provision, the following were appropriately assessed: Degree of Disability Major Appendage Minor Appendage Severe 40 30 Moderately Severe 30 20 Moderate 10 10 Slight 0 0 38 C.F.R. § 4.73, Diagnostic Code 5305 (1986). As can be seen, because a 20 percent disability rating was not for application for any disorder of the major appendage under any severity, the RO committed CUE, and the Board will therefore grant the appeal to the extent of finding that a 30 percent rating should have been assigned in April 1986, effective July 1, 1986. Having so observed the RO's error, it cannot be said that the recharacterization of the appellant's right arm disability was in error. Indeed, in September 1969, a special VA neurological examination noted that while the appellant had sustained a right shoulder gunshot wound with a resulting fracture of the humerus, the right radial nerve had been released from adhesions and there were then no residuals noted. In September 1969, the appellant's right shoulder neurological disorder was then characterized as a history of right radial paralysis with none then found. In January 1986, the specialized neurological and orthopedic examination specifically noted the presence of incomplete numbness between the second and third, and third and fourth right fingers, and diminished right-handed grip strength. In these circumstances, it cannot be said under any reading that the appellant's right radial disorder was anything more than "moderately severe." In sum, to the extent that the appellant now intimates that further scrutiny should have been had by the medical examiners, and more than two examinations should have been conducted, such is not CUE. That the adjudicators were then well aware of the requirement to obtain comprehensive medical evidence prior to a rating change, and as mandated by 38 C.F.R. § 3.44(a) to consider "all specialized examinations indicated as a result of general examination and the entire case history" is clear by the fact that such specialized examinations were ordered. To the extent that the appellant may argue that additional further examinations should have been conducted, he attempts to argue facts that were not of record in April 1968. Such an asserted failure in the duty to assist is not a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. Elkins, supra. Elimination of SMC The appellant's representative, although acknowledging improvement in function of the appellant's left foot (see appellant's brief, pages 9 and 10), otherwise argues that the elimination of special monthly compensation based upon loss of use of the left foot was CUE. See appellant's brief, page 10. The appellant appears to contend that sustained improvement had not been demonstrated. However, as noted, the RO could and apparently did note that the appellant had regained the power to dorsiflex his foot and his overall left foot condition had shown marked improvement. To the extent that the appellant argues otherwise, (i.e., that the foot had not improved), he is arguing that the facts of record were not properly weighed, and such is not a valid assertion of CUE. The appellant also argues that two or more examinations were required under 38 C.F.R. § 3.344, and cites that portion mandating multiple examinations for those disorders which were "subject to temporary or episodic improvement." Appellant's brief, page 10. The Board disagrees with the appellant's contentions. First, the April 1968 adjudicators had for review two examinations: a May 1985 generalized VA examination and a January 1986 VA special "neurologic and orthopedic examination." In any case, and as noted above, absent judicial interpretation in April 1968, the quoted portion of 38 C.F.R. § 3.344 was linked to examples of disorders of varying severity; "e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc." For the appellant through counsel to presently characterize his own disability as one involving temporary or episodic improvement is merely his disagreement with the facts that were then of record. As is explained in depth above, such is not CUE. As noted above, the January 1986 examination found that although the appellant initially had difficulty moving his left foot, he had "gradually retrieved his powers to do so," and that his left foot disability was then characterized as one involving "an inability to stand for prolonged periods of time." Given this evidence, the RO had a basis upon which to find that the appellant's left foot disability was not within the parameters of 38 C.F.R. § 3.350a(2), providing that special monthly compensation for loss of use of a foot was appropriate "when no effective function remains other than that which would be equally well served by an amputation stump." 38 C.F.R. § 3.350a(2) (1986). It appears that the appellant's representative is contending that additional medical examination was required prior to elimination of the special monthly compensation. For reasons stated immediately above, the Board believes that the RO's decision was supported by evidence then of record. Moreover, the appellant appears to be alleging that VA failed in its obligation to assist him in the development of his claim by not scheduling him for an additional medical examination. However, alleged failure on the part of VA in assisting a veteran in the development of his claim does not constitute CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). Finally in this regard, although the appellant argues that his foot condition in 1986 was in fact the same as it was in 1988, which ultimately resulted in the reinstatement of special monthly compensation, such an allegation is not CUE. Appellant's brief, page 11. As noted, a valid assertion of CUE is based upon the record as it existed at the time of the challenged decision. Fugo, supra. The "void ab initio" contention The appellant through his representative additionally challenges the April 1986 rating action by claiming that it is "void ab initio" due to alleged failure on the part of the RO to follow mandated VA instructions for reducing ratings, specifically VA Manual M21-1, Part III, Chapter 52. [April 29, 2002 brief, pages 1, 11-15]. The appellant calls upon the Board to declare the April 1986 RO rating action "null and void". The alleged failure to follow M21-1 procedures is that: "VA violated its obligations to follow the procedures of the Manual in reducing the veteran's combined evaluation on a predetermination notice alone. The April 1986 rating decision was such predetermination notice required by the Manual provisions, but the Board [sic] never followed this up with a second rating decision actually effecting the reduction itself. [appellant's April 2002 brief, pages 13- 14] The Board observes that although the appellant has characterized the matter as involving a predetermination notice without a final determination, it appears that the opposite may be true. That is, the April 1986 decision was a final decision which was communicated to the appellant as such, including furnishing him his appeal rights, in a letter dated April 30, 1986. However, no notice was furnished before the rating decision. As noted by the appellant's representative, 38 C.F.R. § 3.105(e), which became effective in 1990, calls for notice to be given at least 60 days before the decision to reduce is made. Either way, it appears that VA manual M21-1 provisions were not adhered to by the RO. As explained below, however, the Board does not believe that this nullified the April 1986 decision. The appellant has been less than clear concerning the Board's authority to declare RO rating actions "void ab initio" and/or "null and void". Such language does not appear in the law and regulations. Instead, the appellant has pointed to a number of decisions of the Court which purportedly "declared void VA attempts to reduce a veteran's evaluation for failure to observe its substantive rules for terminating a veteran's benefits." See appellant's brief, page 13. Setting aside the matter of whether any of the cited cases in fact "declared void" VA decisions in circumstances similar to that presented in this case, the appellant has not cited to any law, regulation or Court decision which authorizes the Board to do so. Accordingly, the Board declines to declare the April 1986 decision "null and void" in the absence of specific authority for so doing. It is clear however, that the Board has the authority to determine whether a decision contains CUE. The Board will accordingly treat the appellant's contention concerning the RO's failure to follow Manual procedures as an additional CUE contention. The appellant contends that in April 1986 the RO should have followed predetermination notice procedures, which were later (1990) adopted as VA regulations. However, as noted above a determination that there was CUE must be based on the record and the law that existed at the time of the decision. See Russell, 3 Vet. App. at 314. The alleged failure to apply M21-1 guidelines did not constitute CUE. See Allin v. Brown, 6 Vet. App. 207, 214 (1994) [CUE is an administrative failure to apply the correct statutory or regulatory provisions to the correct and relevant facts. Thus, in order for CUE to exist, there must have been a failure to apply the appropriate regulations or statutes. Because the VA Physicians' Guide for Disability Evaluation Examinations is neither a statute nor a regulation, the failure to properly apply its guidelines cannot constitute CUE]. In short, the predetermination procedures were not applicable law at the time of the April 1986 rating decision, and no authority had deemed the administrative procedures to be substantive in nature. As such, any alleged violation is per se not CUE. ORDER CUE having been found in the April 1986 rating decision to the extent that a 30 percent rating should have been assigned for the residuals of a gunshot wound to the right shoulder including a fracture of the humerus, the appeal is granted to that extent, and is otherwise denied. Barry F. Bohan Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.