Citation Nr: 1212876 Decision Date: 04/09/12 Archive Date: 04/19/12 DOCKET NO. 11-08 836A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral foot drop. 2. Entitlement to an increased rating for residuals of a shell fragment wound to the left leg with damage to muscle groups XI and XII, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for residuals of a shell fragment wound to the right leg with damage to muscle groups XI and XII, currently rated as 10 percent disabling. 4. Entitlement to special monthly compensation (SMC) based on need for aid and attendance or on housebound status, for the purposes of accrued benefits. 5. Was there clear an unmistakable error (CUE) in the January 26, 1948 rating decision that confirmed and continued a 10 percent rating for the Veteran's service connected residuals of a shell fragment wound to the left leg, with damage to muscle groups XI and XII? 6. Was there CUE in the January 26, 1948 rating decision that confirmed and continued a 10 percent rating for the Veteran's service connected residuals of a shell fragment wound to the right leg, with damage to muscle groups XI and XII? REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to November 1945. The Veteran died on April [redacted], 2009. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2006, December 2007, and February 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This issue of entitlement to an SMC was remanded in November 2008 for further development. With regards to the remaining issues, notices of disagreement were received in November 2008 and October 2010, a statement of the case was issued in February 2011, and a substantive appeal was received in April 2011. The issue of entitlement to an SMC was dismissed by the Board due to the Veteran's death in April 2009. The Board notes that the Veteran's surviving spouse requested to be substituted for her husband pursuant to Public Law 110-389 (see 38 U.S.C.A. § 5121A) which states that "if a claimant dies while a claim or appeal for any benefit under a law administered by the Secretary is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purpose of processing the claim to completion." Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's bilateral foot drop was secondary to his service connected residuals of shell fragment wounds to the left and right legs with damage to muscle groups XI and XII. 2. The Veteran's service-connected residuals of a shell fragment wound to the left leg with damage to muscle groups XI and XII were not manifested by through-and-through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement or prolonged infection. 3. The Veteran's service-connected residuals of a shell fragment wound to the right leg with damage to muscle groups XI and XII were not manifested by through-and-through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement or prolonged infection. 4. The Veteran's service connected disabilities rendered him unable to care for his daily personal needs or protect himself from the hazards and dangers of daily living without care or assistance on a regular basis. 5. The evidence of record associated with the January 26, 1948 rating decision supports a finding of slight shell fragment wounds injuries to Muscle Groups XI and XII of each leg. These rating were properly elevated to moderate (pursuant to Paragraph 16(1), Schedule for Rating Disabilities (1945 edition)); and 10 percent ratings were assigned for each leg. 6. The January 26, 1948 rating decision was reasonably supported by the evidence then of record. CONCLUSIONS OF LAW 1. The Veteran's bilateral foot drop was secondary to his service connected residuals of shell fragment wounds to the left and right legs with damage to muscle groups XI and XII. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2011). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected shell fragment wounds to the left leg with damage to muscle groups XI and XII have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 5311-5312 (2011). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected shell fragment wounds to the right leg with damage to muscle groups XI and XII have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 5311-5312 (2011). 4. The criteria for SMC based upon the Veteran's need for regular Aid and Attendance/Housebound had been met. 38 U.S.C.A. §§ 1114, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352 (2011). 5. The criteria for CUE in the RO decisions of January 1948 are not met. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated June 2006 and May 2007. The United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, he or she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The Board points out that the U.S. Court of Appeals for the Federal Circuit recently reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify an appellant of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Reviewing the June 2006 and May 2007 correspondences in light of the Federal Circuit's decision, the Board finds that the appellant has received 38 U.S.C.A. § 5103(a)-compliant notice as to her increased rating claims. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant (and Veteran) has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained service treatment records; assisted the appellant in obtaining evidence; afforded the Veteran physical examinations in June 2007, February 2008, October 2008, and January 2009; obtained medical opinions as to the etiology and severity of disabilities; and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the appellant has not contended otherwise. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). Foot drop In the Veteran's April 2007 claim, he listed functional loss of his feet as a secondary to his combat related injuries. The Board notes that the Veteran is service connected for shell fragment wounds to his legs, neck, and right mastoid; cellulitis to his right hand, and posttraumatic stress disorder (PTSD). The RO scheduled the Veteran for a VA examination to determine if his foot disability was secondary to his shell fragment wounds. The Veteran underwent a VA examination in June 2007. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that while on active duty, he sustained shrapnel wounds to both legs. He reported that as a result, he cannot walk, stand, drive, and that he is almost totally unable to ambulate. When asked how long he has been unable to ambulate, the Veteran stated that it has been approximately one year. He also gave a history of having had a stroke one year prior to the examination. The examiner opined that based on the Veteran's history, his muscle pathology was not related to his shrapnel injuries. The Veteran submitted a September 2008 correspondence from Dr. G.N.B. Dr. G.N.B. stated that the Veteran sustained shrapnel injuries to both legs that affect the tibial nerve in both lower extremities. He stated that the Veteran has weakness with dorsiflexion; and that the Veteran will drag his feet as a result of the weakness. He stated that the Veteran had no other injuries or medical problems that would account for this. The Veteran underwent another VA examination in October 2008. The examiner reviewed the claims file in conjunction with the examination. The examiner concluded that it is at least as likely as not that the Veteran's bilateral foot drop was caused by his service connected shrapnel wounds to muscle groups XI and XII. His rationale was that after reviewing the claims file in detail, the area of disability was compatible with the area of muscle and nerve damage incurred from his shrapnel wounds. He further explained that the mechanism of injury in the military was compatible with the anatomical defects that have lead to bilateral foot drop. He stated that the stoic nature of the individual leads the examiner to believe that the Veteran has had foot drop much longer than he admitted, and that he has had the injury (at least to some degree) since 1948. However, the condition worsened in the past six years due to the concomitant diabetic peripheral neuropathy and age. Finally, the Board notes that after the Veteran passed away, the RO sought another medical opinion. In February 2010, an examiner reviewed the claims file and opined that the shrapnel produced some dysfunction in the Veteran's lower extremities; but that it probably did not produce bilateral foot drop. The examiner stated that the problem was that he could not be certain of the amount of foot drop because examinations did not show any definite evidence of it. He stated that there was never a really detailed examination by a neurologist that would lead to a definite diagnosis of foot drop. Instead, the examiner pointed out that the only neurological examinations did not see any significant problems that suggested weakness or bilateral foot drop. He opined that shrapnel could have produced discomfort and pain in the legs, as well as difficulty with ambulating. However, it would be unlikely to have produced foot drop by itself without clear documented nerve injuries at the time of the injury. He stated that without a detailed EMG and nerve conduction study, he was not certain that a definite answer was possible. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. The Board finds that there are no substantial or significant factors which favor one opinion over another. As such, the evidence is in relative equipoise. Two examination reports (June 2007 and February 2010) weigh against the claim. However, the June 2007 report lacked a detailed rationale for the opinion. Moreover, neither the June 2007 examiner nor the February 2010 physician addressed the possibility of whether shell fragment wounds might have aggravated bilateral foot drop. Finally, the February 2010 examiner did not actually examine the Veteran; and he explicitly stated that without a detailed EMG and nerve conduction study, no definite conclusion could be reached. The February 2008 examination report that weighed in the Veteran's favor was hardly definitive either. The rationale in support of the claim was not terribly detailed. Likewise, the September 2008 correspondence from Dr. G.N.B. failed to acknowledge the fact that the Veteran had peripheral neuropathy secondary to non-service connected diabetes mellitus. In giving the benefit of the doubt to the appellant, the Board finds that the evidence is in equipoise and that service connection for bilateral foot drop is warranted as secondary to his service connected residuals of a shell fragment wound to the right and left legs with damage to muscle groups XI and XII. Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Generally, injuries affecting gunshot and shell fragment wounds are evaluated as muscle injuries, under 38 C.F.R. § 4.73. Diagnostic Codes 5301-5323 explain the function and location of 23 muscle groups for which rating criteria are provided. Ratings are assigned under each code based on whether the muscle injury is slight, moderate, moderately severe, or severe. To determine the severity of the injury, it is necessary to look at the type of injury, history and complaint, and objective findings. 38 C.F.R. § 4.56(d). Additionally, the cardinal signs and symptoms of muscle disability for VA purposes are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Muscle injuries are classified into four general categories; slight, moderate, moderately severe, and severe. The factors considered in evaluating the severity of a muscle injury are the velocity, trajectory and size of the missile which inflicted the wounds; the extent of the initial injury and duration of the hospitalization; the therapeutic measures required to treat the disability; and the current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring or loss of sensation. 38 C.F.R. § 4.56. "Slight" disability of muscles results from a simple wound of muscle without debridement or infection. There is service department record of superficial wound with brief treatment and return to duty, and of healing with good functional results. There are no cardinal signs or symptoms of muscle disability, minimal scar, and no evidence of fascial defect, atrophy, or impaired tonus. There is no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). "Moderate" disability of the muscles is shown by through-and-through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement or prolonged infection. The history of a moderate muscle disability includes service department records of in-service treatment for the wound and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly a lowered threshold of fatigue after use which affects the particular functions controlled by the injured muscles. Objective findings include small or linear entrance and (if present) exit scars which indicate a short track of the missile through muscle tissue, some loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or a lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A "moderately severe" disability of the muscles is shown by a through-and-through or deep penetrating wound, by a small high velocity missile or a large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaints of this injury include a record of hospitalization for a prolonged period for treatment of a wound, a record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of an inability to keep up with work requirements. Objective findings of a moderately severe muscle wound are entrance and (if present) exit scars indicating the track of the missile through important muscle groups; indications on palpation of moderate loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). "Severe" disability consists of through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56. If present, the following are also signs of severe muscle disability: (1) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. Under 38 C.F.R. § 4.56 muscle disabilities are evaluated as follows: (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Muscle injuries in the same anatomical region, i.e. (a) the shoulder girdle and arm, (b) the forearms and hand, (c) the pelvic girdle and thigh, (d) the leg and foot, will not be combined, but instead, the rating for the major group affected will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. Paragraph 16(1), Schedule for Rating Disabilities. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet.App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's service-connected residuals, shell fragment wounds, right and left legs, muscle groups XI and XII have been rated by the RO under the provisions of Diagnostic Code 5311-5312. Under these regulatory provisions, a 0 percent rating is warranted for a slight disability to either muscle group; a 10 percent rating is warranted for a moderate disability to either muscle group; a 20 percent rating is warranted for a moderately severe disability to either muscle group; and a 30 percent rating is warranted for a severe disability to either muscle group. The Veteran underwent a VA examination in November 1947. The examiner noted that the Veteran sustained soft tissue injuries only (to both legs). There was infection in both legs, mostly in the right. The examiner stated that the wounds healed completely in about six months. At the time of the examination, the Veteran complained of occasional pain in both knees and a feeling of numbness in the left leg in its entirety from the knee down. The contour of both legs was normal. The Veteran had full range of motion and normal muscle strength in both legs and feet. The Veteran underwent a VA examination in June 2007. The examiner reviewed the claims file in conjunction with the examination. The examiner found that none of the wounds were through and through injuries. The Veteran complained of pain; but the examiner found no evidence of decreased coordination, increased fatigability, weakness, uncertainty of movement, or flare-ups of muscle injury residuals. The Veteran underwent another VA examination in February 2008. The examiner found that none of the wounds were through and through injuries. There were no associated bone, nerve, vascular, or tendon injuries. The Veteran reported pain and stiffness in his leg (whether the right or left leg was not specified). He also reported that he has fallen several times and that he experiences increased fatigability. The examiner did not find evidence of weakness and uncertainty of movement. The Veteran complained of flare-ups of muscle injury residuals that were moderate. The flare-ups last approximately one hour, and their frequency depends on the Veteran's level of activity. The flare-ups are aggravated by standing, and rainy weather. He did not exhibit unilateral weakness, but he did report problems with his balance since the stroke. The examiner noted nerve damage to the lower extremities; but opined that the damage was most likely related to neuropathy secondary to his non-service connected diabetes mellitus. The examiner noted that the Veteran is no longer employed. She opined that the Veteran's gait impairment is secondary to peripheral neuropathy, and possibly the residuals of the stroke. The Veteran underwent a third VA examination in October 2008. Once again, the examiner found that none of the wounds were through and through injuries. He described the injuries as peroneal and tibial nerve damage. The Veteran reported pain, decreased coordination, increased fatigability, weakness, uncertainty of movement, stiffness and flare-ups. The Veteran once again reported moderate flare-ups. They lasted for hours and occurred every 1-2 months. Upon examination, the examiner found no injury to muscle group X in either leg; and muscle strength was 5 bilaterally. Muscle strength was 3 bilaterally for muscle groups XI and XII. The examiner noted that there was no tissue lost. The examiner also noted that there was weakness and fatigue with repetitive use. The Veteran reported that he has been working part time as the pastor of a church; and that he has been so employed for 20 years. He estimated that he has lost 23 weeks of work in the past year. The Board notes that a rating in excess of 10 percent is warranted for moderately severe muscle injuries. However, since the Veteran has muscle injuries in the same anatomical region, the rating of the major group affected will be elevated pursuant to Paragraph 16(1), Schedule for Rating Disabilities. Consequently, for a rating in excess of 10 percent to be warranted, the Veteran's major muscle group must be only deemed moderate. Moderate muscle disabilities are shown by through-and-through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement or prolonged infection. Objective findings include small or linear entrance and (if present) exit scars which indicate a short track of the missile through muscle tissue, some loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or a lowered threshold of fatigue when compared to the sound side. In this case, the examination results consistently reflect that the Veteran did not sustain any through and through injuries or deep penetrating wounds. Moreover, there is no evidence of loss of deep fascia or muscle substance. The June 2007 examiner found no evidence of decreased coordination, increased fatigability, weakness, uncertainty of movement, or flare-ups of muscle injury residuals. The February 2008 examiner did not find evidence of weakness and uncertainty of movement. The examiner did note nerve damage to the lower extremities; but opined that it was most likely related to neuropathy which was secondary to his non-service connected diabetes mellitus. In the absence of any through and through muscle injuries or other evidence of a moderate injury to either muscle group XI or XII, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claim for increased ratings for residuals of a shell fragment wounds to the left and right legs with damage to muscle groups XI and XII must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's symptoms squarely matched the type and degree of the examples set forth under the criteria for the current 10 percent schedular ratings. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Special Monthly Compensation (SMC) If a Veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance, an increased rate of compensation (special monthly compensation) is payable. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2011). The following will be accorded consideration in determining the need for regular aid and attendance: Inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be able to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a) (2011). Special monthly compensation may also be paid if a Veteran has a single service-connected disability rated 100 percent and either (1) has additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disabilities. Permanently housebound means the Veteran is substantially confined, as a direct result of service- connected disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2011). The Veteran was service connected for post traumatic stress disorder (PTSD); residuals, shell fragment wound, muscle groups XI and XII bilaterally; residuals, shell fragment wound, right neck and right mastoid; and cellulites, right hand. Additionally, pursuant to this decision, service connection has been granted for bilateral foot drop. His PTSD has been rated at 100 percent effective December 26, 2006. The Board remanded this issue in November 2008 because it found that although the Veteran had undergone VA examinations in May 2007 (psychiatric) and February 2008 (hand, fingers, and thumb) he had not been provided a VA examination to determine whether his service connected disabilities alone cause him to be so helpless as to be in need of regular aid and attendance The Veteran underwent an examination in December 2008. He also underwent a psychiatric examination in January 2009. The examiners reviewed the claims file in conjunction with the examinations. The examiner who conducted the December 2008 examination stated that the atrophy to the Veteran's legs and the severe bilateral foot drop caused the Veteran to not be able to stand without help. He further stated that the Veteran is wheelchair bound as a result of combat-related muscle injuries to his legs. He opined that the service connected injuries are the reason that the Veteran cannot walk or stand alone. He stated that the only activity of daily living that the Veteran could do is self-feeding; and if it were not for the support of his family, he would die shortly. He concluded that the Veteran was housebound and in need of aid and assistance. He noted the non-service connected disabilities; but found that if he had no service connected injuries to his legs, then he would be able to care for himself. Similarly, the January 2009 examiner concluded that the Veteran can no longer live independently due to dementia, PTSD, and physical limitations. The Board finds that based on the December 2008 and January 2009 examination reports, that special monthly compensation is warranted for the purposes of accrued benefits. Clear and Unmistakable Error (CUE) "A decision of [an RO] shall be final and binding on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104." 38 C.F.R. § 3.104(a). Such a final decision may be subject to revision, however, in the presence of clear and unmistakable error, as described in 38 C.F.R. § 3.105. 38 C.F.R. §§ 3.104(a), 3.105. Thus, a prior RO decision will be accepted as correct unless CUE can be shown. 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 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The criteria to determine whether CUE was present in a prior determination are as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992); accord Richardson v. Nicholson, 20 Vet. App. 64, 68-69 (2006) (setting forth CUE requirements). If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. There is a presumption of validity to otherwise final decisions, and where such decisions are collaterally attacked--and a CUE claim is undoubtedly a collateral attack--the presumption is even stronger. See Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language used in Russell). In this case, the appellant argues (through her representative) that the Veteran should have been granted a 10 percent rating for each muscle group involved. She argues, therefore, that the Veteran should have received a 10 percent rating for the injuries to muscle group XI of the left leg; a 10 percent rating for the injuries to muscle group XI of the right leg; a 10 percent rating for the injuries to muscle group XII of the left leg; and a 10 percent rating for the injuries to muscle group XII of the right leg. She also argued that a through and through wound can exist notwithstanding the fact that there is no exit wound. The governing law at the time of the January 26, 1948 rating decision reflects that disability evaluations, in general, were intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They were primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. Veterans' Regulation No. 3(a), Schedule for Rating Disabilities (1945 edition). Four grades of severity of disability due to muscle injuries were recognized for rating purposes: slight, moderate, moderately severe, and severe. These grades were based on the cardinal symptoms of muscle disability (weakness, fatigue-pain, uncertainty of movement), and on the objective evidence of muscle damage and the cardinal signs of muscle disability (loss of power, lower threshold of fatigue, and impairment of coordination). Paragraph 15, Schedule for Rating Disabilities (1945 edition). A slight (i.e., insignificant) disability of the muscles would be one resulting from a simple wound of the muscle, without debridement, infection, or effects of laceration. A moderate disability of the muscles would be one produced by a through and through or deep penetrating wound of relatively short track by a single bullet or small shell or shrapnel fragment in the absence of the explicit effect of high velocity missiles and of residuals of debridement or of prolonged infection. A moderately severe disability of the muscles would be one produced by a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement, or with prolonged infection or with sloughing of soft parts, and intermuscular cicatrization. A severe disability of the muscles would be one produced by a through and through or deep penetrating wound due to a high velocity missile, or larger multiple low velocity missiles, or the explosive effect of a high velocity missile, or shattering bone fracture, with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding, and cicatrization. Paragraph 17, Schedule for Rating Disabilities (1945 edition). In rating disability from injuries of the musculoskeletal system, attention was to be given first to the deeper structures injured, bones, joints, and nerves. A compound comminuted fracture, for example, with muscle damage from the missile established severe muscle injury, and there may be additional disability from malunion of bone, ankylosis, etc. The location of foreign bodies may establish the extent of penetration and consequent damage. It may not be too readily assumed that only one muscle, or group of muscles, is damaged. A through-and-through injury with muscle damage was always at least a moderate injury, for each group of muscles damaged. Muscle Injuries, Note, Schedule for Rating Disabilities, page 44 (1945 edition). Muscle injuries in the same anatomical region, i.e. (a) the shoulder girdle and arm, (b) the forearms and hand, (c) the pelvic girdle and thigh, (d) the leg and foot, would not be combined, but instead, the rating for the major group affected would be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. Paragraph 16, Schedule for Rating Disabilities (1945 edition). The Veteran underwent a VA examination in November 1947. The examiner noted that the Veteran sustained soft tissue injuries only (to both legs). There was infection in both legs, mostly in the right. The examiner stated that the wounds healed completely in about six months. At the time of the examination, the Veteran complained of occasional pain in both knees and a feeling of numbness in the left leg in its entirety from the knee down. The contour of both legs was normal. The Veteran had full range of motion and normal muscle strength in both legs and feet. In regards to the appellant's contention that a through and through injury can exist notwithstanding an exit wound: the Board notes that she offered no explanation for this contention. Instead, the Board notes that at every examination, the examiner has explicitly stated that there was no through and through injury. In regards to the appellant's contention regarding the assignment of ratings: the January 1948 rating decision does not provide much in the way of a rationale for the RO's decision to grant 10 percent ratings for each leg. However, the Board notes that the evidence failed to reflect through and through or deep penetrating wounds, moderate loss of deep fascia or muscle substance, impairment of muscle tonus, or definite weakness or fatigue. Consequently, the injuries to muscle groups XI and XII would have been characterized as no more than slight. Slight injuries to these muscle groups would warrant noncompensable ratings. Consequently, the injuries to the Veteran's left leg warranted a 0 percent rating under Diagnostic Code 5311 (for muscle group XI); and a 0 percent rating under Diagnostic Code 5312 (for muscle Group XII). Likewise, the injuries to the Veteran's right leg warranted a 0 percent rating under Diagnostic Code 5311 (for muscle group XI); and a 0 percent rating under Diagnostic Code 5312 (for muscle Group XII). As the Veteran's representative has pointed out, for muscle injuries in the same anatomical region, the ratings will not be combined, but instead, the rating for the major group affected will be elevated. Paragraph 16(1), Schedule for Rating Disabilities (1945 edition). Consequently, the major muscle group affected would be elevated from slight to moderate. The result is that the injured muscle groups in the left leg would warrant a 0 percent rating and a 10 percent rating; and the injured muscle groups in the right leg would warrant a 0 percent rating and a 10 percent rating. Ultimately, the Veteran's combined rating for each leg is 10 percent (which is precisely what the RO assigned). The fact that the RO did not specifically list the noncompensable ratings for each muscle group did not lead to a result would have been manifestly different but for the error. The Board finds no clear and unmistakable error in the January 26, 1948 rating decision. ORDER Service connection for bilateral foot drop and a special monthly compensation based on need for aid and attendance or on housebound status is granted. Increased ratings higher than 10 percent for service connected residuals of a shell fragment wounds to the right and left legs with damage to muscle groups XI and XII is denied. There was no CUE in the January 26, 1948 rating decision that confirmed and continued 10 percent ratings for the Veteran's service connected residuals of a shell fragment wound to the right and left legs, with damage to muscle groups XI and XII ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs