Citation Nr: 1306553 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-42 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an effective date earlier than May 20, 2008 for the assignment of a compensable (10 percent) evaluation for residuals of a left bunionectomy, to include whether clear and unmistakable error (CUE) was made in the May 2004 rating decision. 2. Entitlement to an effective date earlier than May 20, 2008 for the assignment of a compensable (10 percent) evaluation for residuals of a right bunionectomy and stress fracture, to include whether CUE was made in the May 2004 rating decision. 3. Entitlement to an increased rating for residuals of a left bunionectomy, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for residuals of a right bunionectomy, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The RO increased the Veteran's evaluation for bilateral bunionectomies from noncompensably rated to 10 percent evaluations, effective May 20, 2008. The Veteran filed a timely notice of disagreement with the effective date assigned for the 10 percent evaluation and requested an effective date in February 2004. In a January 2010 rating decision, the RO found that CUE had not been committed. The Board, in an August 2010 remand, noted that the Veteran had disagreed with the January 2010 rating decision during his March 2010 Decision Review Officer (DRO) hearing. In October 2010, the Veteran submitted a timely substantive appeal of the issues currently before the Board. During an April 2011 DRO hearing, the Veteran withdrew a claim for an earlier effective date for an elbow scar. Transcripts of the Veteran's February 2009 and April 2011 DRO hearings are contained in the claims file. Additionally, transcripts from the Veteran's March 2010 and November 2011 Board hearings are contained in the claims file. At his 2011 hearing before the Board, the Veteran asserted that his residual surgical scars associated with his bunionectomies had increased in severity. Thus, entitlement to increased ratings for these residuals scars has been raised by the record. These issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. The issues of increased ratings for residuals of bunionectomy have are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not appeal the May 2004 rating decision which provided initial noncompensable ratings for residuals of left and right bunionectomies. 2. The Veteran clearly and unmistakably underwent resection surgery for left hallux valgus in service. 3. The Veteran clearly and unmistakably underwent resection surgery for right hallux valgus in service. CONCLUSIONS OF LAW 1. There is clear and unmistakable error in the May 2004 rating decision that which provided initial noncompensable evaluations for residuals of a left and right bunionectomies. 38 U.S.C.A. §§ 5109A(a), 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(b), 3.105(a) (2012). 2. The requirements are met for an earlier effective date of February 28, 2004, for the award of a 10 percent evaluation for residuals of a left bunionectomy. 38 U.S.C.A. §§ 1101, 1112, 1113, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.307, 3.309, 3.400. 3. The requirements are met for an earlier effective date of February 28, 2004, for the award of a 10 percent evaluation for residuals of a right bunionectomy and stress fracture. 38 U.S.C.A. §§ 1101, 1112, 1113, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.307, 3.309, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Given the Board's favorable disposition of the claims on appeal, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Laws and Regulations The Board finds the May 2004 rating decision that provided initial noncompensable ratings for residuals of bilateral bunionectomies contains CUE, and the appeals will be granted. See 38 C.F.R. § 3.105(a). Service treatment records show that the Veteran underwent right and left bunionectomies in service. The records include the September 2002 operation report for a modified McBride bunionectomy of the right foot. The description of the procedure performed on the Veteran included the use of a saw to resect the medial eminence completely and to perform a through-and-through V-shaped osteotomy of the transverse plane of the first metatarsophalangeal joint. The Operation report for the Veteran's 2003 left bunionectomy is not contained in the service treatment records; however, post-operative orders show that he underwent an Austin bunionectomy. The Veteran was discharged from service in February 2004. He filed a claim for service connection for bilateral bunions on March 1, 2004. A March 2004 general medical examination noted the Veteran had undergone bilateral bunionectomies in service and described the surgical scars on both feet. X-rays additionally revealed boney deformity in the distal first metatarsal of both feet, likely secondary to bunionectomy. A May 2004 rating decision granted entitlement to service connection for residuals of right and left bunionectomies with initial noncompensable (0 percent) ratings, effective February 28, 2004. The RO notified the Veteran of that decision in the same month at his address of record and apprised him of his procedural and appellate rights, but he did not initiate an appeal. There was no indication that this letter was returned or not received by the Veteran. Therefore, the May 2004 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. Accordingly, it is only subject to reversal or amendment if it contains CUE. 38 C.F.R. § 3.105(a). The Veteran filed a claim for increased ratings for his residuals of right and left bunionectomies in May 2008. In an August 2008 rating decision, the Veteran was granted increased evaluations of 10 percent for his residuals of right and left bunionectomies, effective May 20, 2008 (the date of his increased rating claims). The RO cited an August 2008 VA feet examination report in determining the Veteran's disabilities warranted 10 percent evaluations. In a September 2008 Notice of Disagreement, the Veteran argued that the 10 percent rating should have been provided effective February 28, 2004. As to the CUE and effective date issues on appeal, there are no free-standing earlier effective date assertions cognizable in law - that is, where the Veteran asserts entitlement to an earlier effective date, without a basis in law or fact. Instead, an earlier effective date claim or request is permitted in two circumstances: (1) on appeal from an initial rating decision or (2) in a CUE claim where the original rating decision is final. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. 38 U.S.C.A. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). A claim of clear and unmistakable error is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1997). Therefore, a claimant who seeks to obtain retroactive benefits based on clear and unmistakable error has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). See also 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 clear and unmistakable error). Clear and unmistakable error is the 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensured, the error complained of cannot be clear and unmistakable. Id. The claimant must offer some persuasive reasons as to why the result would have been manifestly different but for the alleged error, unless it is the kind of error that, if true, would be clear and unmistakable on its face. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Fugo, 6 Vet. App. at 44. Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). In order to find clear and unmistakable error in a prior adjudication, it must be determined (1) that either the correct facts known at the time or constructively known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the prior decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Russell, 3 Vet. App. at 313-14. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). The laws at the time of the RO or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not CUE to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). The application of a regulation that has been subsequently invalidated does not constitute CUE. VAOPGCPREC 25-95. Mere disagreement as to how the facts were weighed or evaluated does not amount to a claim of clear and unmistakable error. Baldwin, 13 Vet. App. at 5; Shockley, 11 Vet. App. at 214; Russell, 3 Vet. App. at 313. Simply to claim clear and unmistakable error on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of clear and unmistakable error. Fugo, 6 Vet. App. at 44. If an earlier decision contained clear and unmistakable error, the prior decision must be reversed or revised, and the decision constituting reversal or revision on the grounds of clear and unmistakable error has the same effect as if the correct decision had been made on the date of the prior, reversed decision. 38 C.F.R. §§ 3.105(a); 3.400(k). In order to reasonably raise a claim of clear and unmistakable error, the claimant must provide some degree of specificity as to what the alleged error is. If a claimant fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice. Simmons v. Principi, 17 Vet. App. 104, 114 (2003). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons, 17 Vet. App. at 114. The Board will therefore adjudicate the merits of his CUE claim. The Board finds the May 2004 rating decision that provided initial noncompensable ratings for residuals of right and left bunionectomies contains CUE. See 38 C.F.R. § 3.105(a). The RO committed error in its May 2004 rating decision when it failed to properly consider the applicable rating criteria for bunions (hallux valgus). See 38 C.F.R. § 4.71(a), Diagnostic Code 5280 (2003). The Veteran was granted entitlement to service connection for residuals of right and left bunionectomies; however, the RO failed to consider Diagnostic Code 5280 which directly addresses bunions (hallux valgus) and includes a 10 percent rating for operations with resection of the metatarsal head. Instead, the RO assigned rating code 5284-7805 to the Veteran's service-connected residuals of bunionectomies. Diagnostic Code 5284 addresses "other foot injuries." The RO used Diagnostic Code 7805 to address the bunionectomy surgical scars. Under "Reasons for Decision" on the May 2004 rating decision, the RO noted that the Veteran underwent surgery for hallux valgus in service and that the March 2004 x-rays which revealed first metatarsal bunionectomies on both feet. However, when addressing the rating criteria, the RO addressed the scar regulations, and noted that a 10 percent rating was not warranted because there was no evidence of "malunion or nonunion of the tarsal or metatarsal bones with moderate symptoms" or evidence of "moderate foot disability or moderate symptoms." Thus, the RO considered Diagnostic Codes 5283 (malunion or nonunion of tarsal or metatarsal bones) and 5284 (other foot injuries) but not Diagnostic Code 5280 (unilateral hallux valgus) even though it was the most directly applicable Diagnostic code. Since it is undisputed that the Veteran underwent right and left bunionectomies in service, and Diagnostic Code 5280 provides the rating criteria for hallux valgus which was operated on with resection of the metatarsal head the statutory and regulatory provisions extant at the time of the May 2004 rating decision were incorrectly applied. In short, the RO in May 2004 committed legal error. In addition, the RO's failure to properly consider the most applicable rating criteria was outcome determinative as Diagnostic Code 5280 provides a 10 percent rating for hallux valgus with resection of the metatarsal head. Fugo, 6 Vet. App. 43-44. That is, the outcome of the Veteran receiving 10 percent ratings for his residuals of right and left bunionectomies would have been undebatable at that time had the correct rating criteria been applied. Reasonable minds could not have differed as to whether the rating criteria in May 2004 entitled the Veteran to 10 percent ratings for his residuals of right and left bunionectomies. Therefore, the error committed by the RO in failing to apply the most applicable rating criteria was clear and unmistakable. Fugo, 6 Vet. App. 43. As CUE in the May 2004 RO decision is established, the Board turns to the remaining issue of the proper effective date to be assigned for the award of 10 percent ratings for residuals of right and left bunionectomies. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date may also be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(ii)(B)(2). Here, the Veteran filed his claim for service connection for bilateral bunions on March 1, 2004. He was discharged from active service on February 27, 2004. Thus, the effective date for the initial 10 percent evaluations for residuals of right and left bunionectomies is February 28, 2004. ORDER The request for revision of the May 2004 rating decision that provided initial noncompensable evaluations for residuals of right and left bunionectomies is granted, on the basis of CUE. An earlier effective date of February 28, 2004, for assignment of a 10 percent disability rating for residuals of a bunionectomy of the right foot is granted. An earlier effective date of February 28, 2004, for assignment of a 10 percent disability rating for residuals of a bunionectomy of the left foot is granted. REMAND A notice of disagreement (NOD) must be in writing and filed by the appellant or a representative within one year from the date of mailing of notice of the result of initial review or determination. See 38 U.S.C.A. § 7105(b)(1),(2) (West 2002); 38 C.F.R. § 20.302(a) (2012). If a NOD is not filed within the one year time period, the RO decision becomes final. See 38 U.S.C.A. § 7105(c) (West 2002). A NOD is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with the determination and a desire for appellate review. If the agency of original jurisdiction gave notice of adjudicative determinations on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to one of the disabilities, the NOD must make that clear. See 38 C.F.R. § 20.201 (2012). Perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which generally requires the filing of both a NOD and a formal appeal. In June 2011, the RO issued a rating decision that increased the disability evaluations for the Veteran's residuals of bunionectomies to 20 percent. The Board observes that the Veteran had not filed a notice of disagreement with the effective dates assigned by the RO in the June 2011 rating decision, before issuing a supplement statement of the case addressing the ratings. In fact, the June 2011 rating decision and supplemental statement of the case appear to have issued simultaneously. Nevertheless, the Veteran's testimony during his November 2011 hearing shows clear disagreement with the current rating assigned for his bunionectomy residuals. Further, this testimony comes within one year of being notified of the June 2011 rating decision. Thus, the Veteran's testimony during his hearing, which was reduced to writing in the hearing transcript, is a timely NOD. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a notice of disagreement is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. So it is in this case. While the June 2011 SSOC addresses the issues, this SSOC was not preceded by a NOD. Simply put, the Board is prohibited from proceeding to a decision on the merit the Veteran's claim for increased ratings until an SOC is issued, followed by the timely submission of a substantive appeal (VA Form 9). See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012). Accordingly, this case is remanded so that the RO or AMC may issue a SOC on the issue of entitlement to higher evaluations for the Veteran's residuals of bunionectomies. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: The RO or AMC should evaluate the evidence of record, and issue a statement of the case (SOC) to the Veteran regarding his increased rating claims for left and right bunionectomies. The Veteran is advised that a timely substantive appeal will be necessary to perfect appeals to the Board concerning these claims. 38 C.F.R. § 20.302(b) (2012). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs