Citation Nr: 1201167 Decision Date: 01/12/12 Archive Date: 01/20/12 DOCKET NO. 09-14 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether there was clear and unmistakable error in the rating decision by the RO in May 1968, assigning a noncompensable rating for scars of the calf and right leg and left leg as in light of a right saphenous nerve injury below the knee. 2. Whether there was clear and unmistakable error in the rating decision by the RO in May 1968, assigning a noncompensable rating for a shell fragment wound of the right leg with retain metal fragment in the right gastrocnemius muscle of Muscle Group XI and right plantar arch pain. 3. Whether there was clear and unmistakable error in the rating decision by the RO in May 1968, assigning a noncompensable rating for a shrapnel wound scar of the left calf. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1966 to November 1967, including service in the Republic of Vietnam for which he was awarded a Purple Heart Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. FINDING OF FACT In an unappealed rating decision of May 1968, the RO assigned a single noncompensable rating for shrapnel wound scars of the calf and the legs; the rating decision was supported by the evidence of record at that time and the rating was consistent with the laws and regulations then in effect. CONCLUSION OF LAW The rating decision by the RO in May 1968, assigning a single noncompensable disability rating for shrapnel wound scars of the calf and legs, was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. The VCAA notice does not apply to a claim of clear and unmistakable error. Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc) (The Court held that as a matter of law, the VCAA is inapplicable to a claim of clear and unmistakable error). REASONS AND BASES FOR FINDINGS AND CONCLUSION Clear and Unmistakable Error A claimant whose VA claim has been adjudicated by the RO has one year after the issuance of written notification in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, the decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§3.104(a), 20.302, 20.1103. Such a final decision, however, may be reversed where evidence establishes that it was a product of clear and unmistakable error. 38 C.F.R. § 3.105(a). A final and binding RO decision will be accepted as correct in the absence of clear and unmistakable error. Where the evidence establishes such an error, the prior decision will be reversed 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. 38 C.F.R. § 3.105(a). Clear and unmistakable error is defined as follows: Either 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. It is the sort of error, which had it not been made, would have manifestly changed the outcome at the time it was made. It is an undebatable error, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). A determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See Russell, 3 Vet. App. at 310. 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 such that 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 clear and unmistakable error. Fugo v. Brown, 6 Vet. App. 40, 43-45 (1993). A breach of a duty to assist cannot constitute clear and unmistakable error. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). In addition, the Federal Circuit also noted that a clear and unmistakable error claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and that an incomplete record, factually correct in all other respects, is not clear and unmistakable error. Id. at 1346 (citing Caffrey v. Brown, 6 Vet. App. 377 (1994)). Additionally, the mere misinterpretation of facts does not constitute clear and unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). What matters is whether, had the error not been made, the outcome would have manifestly been changed. See Crippen v. Brown, 9 Vet. App. 412, 421 (1996). The laws and regulations regarding disability ratings in effect in May 1968 were: Under Diagnostic Code 5311, a disability to Muscle Group XI (lower leg muscles), were rated at varying levels of severity from slight, to moderate, to moderately severe, and to severe. Where the muscle injury is slight, a noncompensable evaluation is warranted. Where the evidence demonstrates moderate muscle injury, a 20 percent rating applies. If moderately severe muscle injury is shown, then a 40 percent evaluation is assigned. Finally, where the evidence indicates a severe muscle injury, a 50 percent rating is warranted. In this case, the question centers on whether the evidence showed a slight or noncompensable disability level. A further description of what the levels of severity signify is set forth in 38 C.F.R. § 4.56. Prior to July 3, 1997, 38 C.F.R. § 4.56(a) defined slight disability of muscles as involving a simple wound of a muscle without debridement, infection, or effects of laceration. Such disability is characterized as one in which the wound was of slight severity or relatively brief treatment and return to duty, healing with good functional results and no consistent complaint of any of the cardinal symptoms of muscle injury or painful residuals. Objective findings would include a minimum scar, slight, if any, evidence of fascial defect or atrophy or impaired tonus, and no significant impairment of function or retained metallic fragments. In contrast, under 38 C.F.R. § 4.56(b), a moderate disability of muscles is characterized by through and through or deep penetrating wounds of relatively short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Such moderate wounds are characterized by clinical examination disclosing entrance and (if present) exit scars that are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue. There must be signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite loss of power or fatigue in comparative tests. The principle signs and symptoms of muscle injury listed in the rating criteria prior to July 3, 1997, are weakness, undue fatigue-pain, and uncertainty or incoordination of movement. 38 C.F.R. § 4.50 (1968). With respect to the scars related to the shrapnel wounds, as of 1964, the applicable rating criteria provided that scars which were superficial, but tender and painful on objective demonstration were rated as 10 percent disabling under Diagnostic Code 7804, and other scars were rated based on limitation of function of the part affected. 38 C.F.R. § 4.118 (1968). Facts The Veteran was wounded in combat, sustaining shrapnel wounds to the legs. The Veteran filed a claim of service connection for the wounds in February 1968, shortly after service separation. He alleges that the rating decision in March 1998 by the RO was clearly and unmistakable erroneous in that he was not given compensable disability ratings. The Veteran has referred to his service treatment records as having been destroyed in the fire in 1973 at the National Personnel Records Center. The record does included some service treatment records. In October 1967, the service treatment records shown that the Veteran's shrapnel wounds in the right leg and left leg were cleaned and dressed. X-rays showed a shell fragment in the right leg, but no fracture. The wound was debrided and stitched. The Veteran was restricted from field duty for two weeks. In November 1967, the Veteran complained of sharp pains in the leg and pain medication was given. At the time of service separation in November 1967, there was no notation on examination of any disability or scars involving the legs. The medical history questionnaire likewise contains no mention of shrapnel wounds or scars. On VA examination in April 1968, there was a one and one-half inch scar two inches below the right knee. A scar on the left leg was described as one-half inch in diameter on the anterior surface of the leg two inches below the knee. The scars were nonadherent and nontender, as well as nondisabling and nondisfiguring. The examination lists present complaints as "none" and reflexes as "active." In the rating decision in May 1968, the RO granted service connection for shrapnel wound scars of the calf and right leg and left leg and assigned a zero percent or noncompensable disability rating. In the rating decision, the RO referred to the debridement of the wound in service and a negative examination on separation from service. In March 1992, the Veteran stated that doctors had informed him that the shrapnel in the right leg could not be removed without further nerve injury. Medical records showed decreased sensitivity to light touch on the right leg in the area of the scar. In a rating decision in October 1992, the RO separately rated the right leg scar and the left leg scar as noncompensable or zero percent). Medical records dated in October 1997 show that the Veteran complained of increased pain with weather changes and six months of worsening cramps at night. Doppler scans showed no deep vein thrombosis of the right leg, and X-rays showed no osseous abnormalities, although there was evidence of a retained metallic body. On VA examination in March 2000, the VA examiner noted that the primary injury to the right leg and a more superficial injury to the left leg from the shrapnel wounds. The VA examiner also noted that the Veteran underwent surgical debridement of the wounds, followed by a fairly significant recovery. The VA examiner described the only residual of the injury was minor numbness in the right calf, which had increased with the Veteran's age. On physical examination, the Veteran had localized tenderness and some adherence of the scar to the subcutaneous tissues and percussion of the scar caused a Tinel's sign which did not radiate past the scar. There was an area of dense anesthesia measuring 8 to 10 cm across which spanned from the injury site to the dorsum of the foot. There was pain in the plantar arch, particularly with repetitive plantar flexion. Examination of the left leg showed a very small shelf fragment wound just below the patellar tendon with no localized tenderness. X-rays of the right leg showed very deep penetration of a piece of shrapnel located in the medial head of the gastrocnemius but no significant evidence of bone loss. The VA examiner noted that the Veteran's right leg injuries showed a fairly typical pattern of getting worse with age. In a rating decision in March 2000, the RO assigned a 20 percent rating for the shell fragment wound of the right leg with retained metal fragment in the right gastrocnemius muscle, Muscle Group XI, and right leg, Muscle Groups I and II, and right plantar arch pain. The noncompensable or zero percent rating for shrapnel wound scar of the left leg was continued, but a separate 10 percent rating was assigned to the right saphenous nerve injury below the knee. The compensable ratings were assigned effective in October 1997. In April 2006, the Veteran argued that his claim for increase, although filed in 1968, had not been recognized until the 1990s, when he was awarded compensable ratings. He stated that at the time he filed his claim in 1968 a photo of his legs with his pants legs pulled up was taken, but no further action was taken, including X-rays or a medical examination. He stated that when he finally received compensation in the 1990s, he was told that he would receive retroactive pay, but he asserts that he was entitled to more money or a longer retroactive period. In June 2011, the Veteran testified that the shrapnel wound in his right leg was still hurting him and had been since the injury. When he first applied for benefits, he was not afforded an examination or X-ray, but simply asked to stand atop a desk, roll up his pants legs and have his scars photographed. Afterwards, he kept asserting that he was entitled to a compensable rating and nothing was ever done about his complaints. He argued that the compensable ratings were merely a reflection of the symptoms he had since the time of injury and as a result those ratings should be retroactive to the time of separation from service. He argued that if X-rays had been taken at the time of the initial claim for service connection the retained fragment would have been the basis for a compensable rating. Analysis The Veteran has stated that when he filed for disability in 1968 nothing was done on his claim or his claim was not acknowledged until 2000. The record shows that the RO adjudicated the claim and granted service connection for scars of the calf and right leg and left leg, but the RO assigned a zero percent or a noncompensable rating. So no compensation was payable. It is this failure to rate his claim, or at least to rate it compensably in 1968, which the Veteran asserts constitutes clear and unmistakable error. In comparing the facts in evidence at the time of the rating decision in May 1968 with the rating criteria in effect at the time, the Board does not find clear and unmistakable error in the rating decision. Despite having a retained fragment in the right leg, the Veteran did not demonstrate a compensable disability in May 1968. A disability rating is based on the overall effect of the injury on the Veteran's ability to function and perform employment duties in a civilian setting. 38 U.S.C.A. § 1155. Similarly, the application of 38 C.F.R. § 4.56, requires that the adjudicator consider all the factors set forth in the regulation and make a determination based on the facts of the particular case. No single factor is sufficient to demonstrate clear and unmistakable error in the application of § 4.56, rather the test is the totality-of-the-circumstances. Robertson v. Brown, 5 Vet. App. 70 (1993); Tropf v. Nicholson, 20 Vet. App. 317 (2006) (reaffirming that 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and no single factor is controlling). In this instance, the evidence of record demonstrates that the Veteran's disability picture in May 1968 was one consistent with the assigned noncompensable disability rating, that is, a slight injury of the muscle group resulting in non-adherent, non-disfiguring scars, and no functional impairment. The history of the injury showed a simple wound, albeit one requiring debridement, but with relatively brief treatment and return to duty, healing with good functional results, no consistent complaints of cardinal symptoms of a muscle injury, minimal scarring, no evidence of fascial defect, atrophy, or impaired tonus, and no significant impairment of function. While the Veteran now experiences occasional pain and cramping in his right foot and subjective numbness in the area around the scar, this was not present in the evidence of record at the time of the rating decision in May 1968. Rather, the evidence of a record - which, in spite of the Veteran's assertions to the contrary, included a VA examination - is one which no functional disability was shown. Although the wound in the right leg was penetrating, there were no objective findings which would demonstrate a moderate muscle disability. The Veteran's reflexes were normal, the scars were nontender, and there were no complaints of symptoms showing functional limitation of the right leg, including any nerve injury. in the report of examination. As such, the disability did not present a picture on which reasonable minds could not differ as to the degree of functional impairment. The Veteran argues that he has a retained fragment in the right calf and that had he been afforded a proper medical examination and an X-ray, a higher disability rating would have been assigned in March 1968. The breach of a duty to assist, including failure to provide an examination, cannot constitute clear and unmistakable error. See Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). In Robertson and in Tropf, the Court held that no single factor listed in the rating criteria is per se controlling as to the disability rating assigned. Rather, the adjudicator is required to consider all of the factors. And the Court has specifically held, in Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000), that a RO is not required to specifically mention the evidence that was considered. See also Hauck v. Nicholson, 403 F.3d 1303 (Fed. Cir. 2005) (noting that in a rating decision it was e not required to set forth in detail the factual bases for the decisions before the 1990 effective date of 38 U.S.C.A. § 5104(b)). Therefore, the mere fact that the Veteran has a retained fragment, even when considered along with the fact that debridement of the original wound was required, does not equate to moderate disability where no functional impairment or muscle defect was shown. Finally, after filing a claim for increase in July 1997, the Veteran submitted medical treatment records from October 1997 showing his complaints of increased pain and worsening cramps in his leg and foot at night. In March 2000, the VA examiner noted the Veteran had a fairly significant recovery from his original injury and that the Veteran's symptoms had increased with age. The VA examiner also stated that this represented a fairly typical pattern of getting worse with age. This evidence serves to support the Board's conclusion that the disability picture in May 1968 was less severe than that which led to the increased, compensable, disability ratings from October 1997. With respect to the noncompensable disability rating assigned to the Veteran's scars, the rating was consistent with evidence of record in 1968, which showed the scars were nontender and nonadherent with no functional impairment of the right leg or left leg. Therefore, the Board finds no clear and unmistakable error with respect to rating the scars. Also, with respect to the failure to assign a separate compensable disability rating for impairment of the right saphenous nerve, this determination was likewise supported by the evidence of record in 1968. The examination report listed the Veteran as having active reflexes and contained no mention of numbness or cramping which were later found to be evidence of nerve impairment on subsequent VA examinations. With no evidence of a nerve injury in the record, the decision not to award a separate rating for such a disability was in line with the facts and the law. As clear and unmistakable error, as to which there could be no difference of opinion, has not been shown with respect to the disability rating assigned by the RO in the rating decision in May 1968, the disability rating is not reversed or amended. ORDER The claim to establish clear and unmistakable error in the rating decision in May 1968 by the RO assigning noncompensable ratings for scars of the right calf and right leg and left leg is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs