Citation Nr: 0813821 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-35 641 ) DATE ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in the December 3, 1979 Board decision which denied an increased rating for residuals of a left thigh injury. (The issues of entitlement to service connection for a low back disability and an increased rating for a scar of the left thigh are the subjects of a separate decision by the Board.) REPRESENTATION Moving party represented by: Robert W. Legg, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) as an original action on the motion of the veteran, received in October 2007, in which he alleges CUE in a December 3, 1979 Board decision that denied his claim of entitlement to an increased rating for residuals of a left thigh injury. FINDINGS OF FACT 1. In a December 1979 decision, the Board determined that residuals of a left thigh injury did not warrant an evaluation in excess of 10 percent. 2. There was a tenable basis for the Board's December 1979 decision. CONCLUSION OF LAW The December 1979 Board decision which denied an increased rating for residuals of a left thigh injury was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400-20.1411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), became effective on November 9, 2000. Implementing regulations were created and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The VCAA redefined VA's duty to assist a veteran in the development of a claim. However, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to claims of clear and unmistakable error in prior final Board decisions. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). A motion for revision of a Board decision based on clear and unmistakable error must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Nonspecific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling. 38 C.F.R. § 20.1404(b) (2007). In the implementing regulation, CUE is defined as a very specific and rare 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. 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. 38 C.F.R. § 20.1403(a). A determination of CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. 38 C.F.R. § 20.1403(b)(1). To warrant revision of a Board decision on the grounds of CUE, 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 CUE. 38 C.F.R. § 20.1403(c). Examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision. (2) The Secretary' s failure to fulfill the duty to assist. (3) A disagreement as to how the facts were weighed or evaluated. 38 C.F.R. § 20.1403(d). CUE 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. 38 C.F.R. § 20.1403(e). In other cases prior to promulgation of this regulation, the U. S. Court of Appeals for Veterans Claims (Court) has defined CUE as an 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 (1991). The Court has also held that a finding that there was such error "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one that would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The "benefit of the doubt" rule of 38 U.S.C.A. § 5107(b) does not apply to a Board decision on a motion to revise a Board decision due to CUE. 38 C.F.R. § 20.1411(a). The Board decision in question was issued in December 1979, and denied an evaluation in excess of 10 percent for residuals of a left thigh injury. The evidence at the time of the Board's December 1979 decision included the moving party's service medical records, which reflect that he sustained an injury to his left thigh when it was punctured by a Jeep gearshift lever. The lever passed superficially through his left thigh, carrying a 1-cm. piece of skin. No nerve injury or artery involvement was noted. The injury was described as a denuded slim lesion anterior and one lateral, about half-way between the knee and pelvis. The moving party was treated with sutures and penicillin, tetanus and gas gangrene antitoxin. He was released to duty on the tenth day after hospitalization. An August 1978 statement from E.S., M.D. notes the moving party's complaints of pain on long standing or walking. He also reported that his left lower extremity tired easily. Examination revealed a normal gait with no atrophy of muscles of the left thigh or leg. All joints had full range of motion, and ankle and knee jerks were normal. There was a 1- inch scar on the anterolateral aspect and a 1.5-inch scar on the posterolateral aspect of the left thigh. Both were depressed, and the exit scar had a small fascial defect. The veteran complained of tenderness upon pressure at the exit scar. Dr. S. reported moderate damage to the lateral thigh muscles. The diagnosis was residuals of a perforating wound of the middle one-third lateral aspect of the left thigh. On VA examination in September 1978, the moving party complained of increased pain and weakness in his left leg, as well as fatigue. Examination revealed a depressed, round scar of the left anterolateral mid-thigh, 1.25-inches in diameter. It was adherent and nontender, with loss of subcutaneous muscle mass. There was also a 1-inch round scar on the lateral left mid-thigh, which was nontender and adherent, with some loss of muscle mass. Flexion, squatting, and other use of the left leg and thigh caused tension of the scar with some resulting pain. There was no gross limitation of the left leg. The diagnosis was residual scars of the left thigh, adherent subcutaneously and depressed, with some loss of muscle mass. The examiner indicated that the scars were nontender, with no limitation of motion. In a February 1979 personal injury report, the moving party related that he had slipped on steps, sustaining multiple injuries to his left leg. An additional VA examination was carried out in June 1979. The moving party complained of pain in his left leg and stated that the leg sometimes caused him to lose his balance. Examination revealed an even, steady, and stable gait. There was a depressed scar over the lateral aspect of the proximal third of the left thigh, which was 5-cm. at its greatest length with a spread of about 2.5-cm. It was adherent and there was underlying musculofascial loss involving the vastus lateralis. There was regional tenderness on light palpation, but no area of active inflammatory change of congestive evidence. Another scar site was situated over the anterolateral biceps femoris region, with central depression and adherence. The scar was about 4-cm. In length, slightly tender, moderately adherent, and without distinct underlying musculofascial loss. Left thigh range of motion was normal. There was no gross evidence of limb atrophy, and the moving party stood evenly balanced on both lower limbs. The diagnosis was residuals of soft tissue injury of perforating wounds of the left thigh, marked by scar formation, with underlying musculofascial loss. The law extant at the time of the December 1979 Board decision provided for a 10 percent evaluation for superficial scars that were tender and painful on objective demonstration. Higher evaluations were available where scars were productive of limitation of function of the affected part. (38 U.S.C. § 355; 38 C.F.R. Part 4, Diagnostic Codes 7804 and 7805). Slight impairment of the anterior thigh muscles (Muscle Group XIV) warranted a noncompensable evaluation, and moderate impairment warranted a 10 percent evaluation. (Diagnostic Code 5314). 38 C.F.R. § 4.56 provided that an objective finding of moderate muscle injury entrance and exit scars indicated that disability is present when there was a relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus and a definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.50 provided that skin scars were incidental and negligible and it was the deep intramuscular and intermuscular scarring that was disabling. In analyzing the evidence, the Board discussed both the criteria for evaluation of scars and muscle injury. It determined that the evidence demonstrated no more than moderate impairment of Muscle Group XIV, and that there was no evidence of limb atrophy or limitation of motion. It found that the disability was characterized by tender and painful scars with no more than moderate impairment of the affected muscle group. The moving party asserts that the December 1979 Board decision was based on CUE, and points out that the decision contemplated both the criteria for scars and muscle injury. His attorney argues that there was in effect a severance of service connection for the scars, and that a 10 percent evaluation for muscle injury was awarded in its place. As noted above, the law extant at the time of the December 1979 decision directed that muscle injury be classified as moderate where there were entrance and exit wounds signifying a relatively short track of missile through muscle tissue. In essence, that controlling regulatory provision incorporated the scars caused by entrance and exit wounds into the 10 percent evaluation for moderate muscle injury. In the alternative, a 10 percent evaluation was warranted for tender and painful scars. The Board contemplated both, and determined that the evidence did not support an evaluation in excess of 10 percent under either diagnostic code. It is within the Board's purview to review the evidence and determine the most appropriate evaluation of a specific disability, to include the diagnostic code under which that disability is evaluated. In the case under consideration here, the Board did just that. It considered the rating criteria for scars and for muscle injury, and determined that a higher evaluation was not provided under either criteria. Such did not result in severance or reduction of any benefit, and did not require the notice described in 38 C.F.R. § 3.105. The argument that there has been a severance is without merit, since service connection remained in effect. Furthermore, recharacterizing a disability to more accurately reflect the exact nature of such disability is not tantamount to severance. With regard to the argument that the scar and muscle injury should have been separately rated, such allegation dues not amount to CUE. The criteria for muscle injuries specifically mentions scars. Such clearly establishes an overlap with the diagnostic criteria for disabilities of the skin, specifically diagnostic code 7804. Further, the court's decision in Esteban v. Brown, 6 Vet. App. 259, 262 (1994), post-dated the decision in question. Moreover, Esteban addressed a cosmetic issue of the face (a fact not present in this case). Evolving interpretations based upon Court decisions do not establish a valid motion for CUE. See VAOGCPREC 9-1994 (March 25, 1994) (Court decisions invalidating VA regulations or statutory interpretations do not have retroactive effect on prior "final" adjudications, but should be given retroactive effect on claims still open on direct review). In sum, there was a tenable basis for the Board's December 1979 decision, and such decision was not based on clear and unmistakable error. ORDER The Board's decision of December 3, 1979 was not clearly and unmistakably erroneous. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs