Citation Nr: 1319899	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  09-43 504	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for residuals of a gunshot wound to the right thigh with compound comminuted fracture and damage to Muscle Groups XIII and XV based on clear and unmistakable error (CUE) in a June 1968 rating decision.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from January 1960 to August 1962 and in the United States Army from March 1965 to January 1968.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

In September 2010, the Veteran testified at a personal hearing before a Decision Review Officer in which he participated by videoconference at the RO in Huntington, West Virginia.  A transcript of this hearing was prepared and associated with the claims file.

The record also reflects that the Veteran was scheduled for an April 2011 Board hearing.  He was provided notice of this hearing in a February 2011 letter, and he withdrew this hearing request in March 2011 in writing.  This hearing request is therefore deemed to have been properly withdrawn.


FINDINGS OF FACT

1.  In a June 1968 rating decision, the Veteran was granted service connection for residuals of a gunshot wound to the right thigh involving Muscle Groups XIII and XV and was assigned a single 30 percent rating effective January 30, 1968.  

2.  In granting the single 30 percent disability rating, the RO failed to properly apply 38 C.F.R. § 4.72 (1967); but for such error, the outcome of the decision would have been different.

3.  At the time of the June 1968 rating decision, the Veteran's gunshot wound residuals of a compound-comminuted fracture of the distal femur involved severe damage to Muscle Groups XIII and XV.


CONCLUSIONS OF LAW

1.  The RO's unappealed June 1968 decision granting service connection for residuals of a gunshot wound to the right thigh with compound comminuted fracture and damage to Muscle Groups XIII and XV and assigning a single 30 percent rating is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

2.  The June 1968 rating decision contains clear and unmistakable error in denying entitlement to an initial rating in excess of 30 percent for residuals of a gunshot wound to the right thigh.  38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 4.25, 4.55, 4.72, 4.73, Diagnostic Codes 5313 and 5315 (1967); 38 C.F.R. § 3.105(a) (2012).

3.  The criteria for an initial 50 percent rating, but no more, for residuals of a gunshot wound to the right thigh have been met.  38 C.F.R. §§ 4.25, 4.55, 4.72, 4.73, Diagnostic Codes 5313 and 5315 (1967).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)).

The Board finds that the provisions of VCAA and its implementing regulations do not apply in the case at hand.  In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that the provisions of VCAA do not apply to a claim based on a previous decision having been the result of clear and unmistakable error.  Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc).  The Court found that an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process."  Livesay, 15 Vet. App. at 178.  As such, an allegation of clear and unmistakable error does not represent a "claim," but a collateral attack on a final decision.  The provisions of VCAA, and its implementing regulations, are not, therefore, applicable to the adjudication of the issue of clear and unmistakable error in a prior final decision.  In any event, in light of the favorable decision for the Veteran in this case, no further discussion of VCAA or the duties to notify and assist is necessary at this point.

II.  Clear and Unmistakable Error

In a June 1968 rating decision, VA granted the Veteran's claim of entitlement to service connection for a gunshot wound to the right thigh involving Muscle Groups XIII and XV.  He was assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5313, which evaluates disabilities of Muscle Group XIII.  

(Muscle Group XIII is responsible for extension of the hip and flexion of the knee; outward and inward rotation of the flexed knee; and, acting with the rectus femoris and sartorius, synchronizing simultaneous flexion of the hip and knee and extension of the hip and knee by belt-over-pulley action at the knee joint.  38 C.F.R. § 4.73, Diagnostic Code 5313 (1967).  Muscle Group XV is responsible for adduction of the hip, flexion of the hip, and flexion of the knee.  38 C.F.R. § 4.73, Diagnostic Code 5315 (1967).)  

In July 1968, the Veteran filed a notice of disagreement, noting that he was about to be hospitalized for right leg surgery.  On July 12, 1968, the Veteran underwent an osteotomy with insertion of Elliott plate, and he was hospitalized until July 25.  Rating decisions in August, November, and December 1968 ultimately established a temporary 100 percent rating from July 9, 1968, through November 30, 1968.  (The rating reverted to 30 percent following the discontinuation of the 100 percent rating.)  

Beginning with the August 1968 rating decision, the Veteran's disability rating has been categorized under the hyphenated Diagnostic Code 5313-5315, which essentially signifies that a disability of Muscle Group XIII is being rated as a disability of Muscle Group XV.  38 C.F.R. § 4.27 (1967).  
 
At the time of the August 1968 decision, the Veteran was notified that he should inform VA if he desired to continue with his appeal, and he did not do so.  Thus, the decisions concerning the assignment of a disability rating for residuals of a gunshot wound to the right thigh involving Muscle Groups XIII and XV became final.  Such final decisions may, however, be reversed or amended where evidence establishes that clear and unmistakable error existed.  38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).

Under 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error.  In order for a claim of clear and unmistakable error to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.  Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Further, 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 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.  Id.  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 v. Brown, 6 Vet. App. 40, 44 (1993).

Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo, 6 Vet. App. at 43.

Where evidence establishes clear and unmistakable error, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. §§ 3.104(a), 3.400(k).  The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior final determination:

(1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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.  

Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14.

The Veteran has requested that he be assigned an initial 40 percent disability rating for his residuals of a gunshot wound to the right thigh with compound comminuted fracture and damage to Muscle Groups XIII and XV based on a finding of clear and unmistakable error in the June 1968 rating decision.  His contentions are best summarized in a May 2013 informal hearing presentation from his accredited representative:

The appellant argues that the June 1968 rating decision is a CUE in the failure to assign a 40 percent rating reflecting severe muscle damage....

Here the appellant argues that the provisions in effect in 1968 directed that a compound comminuted fracture with muscle damage would be rated as severe.  The service medical records and the April 1968 VAE [VA examination] confirmed the compound comminuted fracture, and VA conceded the presence of muscle damage in assigning a 30 percent rating in 1968.  The veteran thus, in June 1968, was shown with the elements for assignment of a severe rating under DC 5313.  In disputing the presence of a CUE the [Agency of Original Jurisdiction] now argues that the veteran did not meet the cardinal symptoms of a severe muscle injury at the April 1968 VAE, however the veteran again notes that the level of muscle disability is not quantified under § 4.72, all that was required was some level of muscle damage in the presence of a compound comminuted fracture.  

The VA clearly failed to properly apply § 4.72 to the facts of the case, revision is warranted.

This claim is of a type that may be revised based on clear and unmistakable error, as it is an assertion that VA incorrectly applied 38 C.F.R. § 4.72 (1967).  That regulation, in pertinent part, provided that "[i]n rating disability from injuries of the musculoskeletal system, attention is 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, establishes severe muscle injury...."  

The Veteran's service treatment records clearly and unmistakably established at the time of the June 1968 rating decision that the Veteran suffered a compound comminuted fracture of the distal femoral shaft of the right leg in January 1966 when he was shot by an enemy machine gun in the Republic of Vietnam.  

The record at the time of the June 1968 rating decision also clearly and unmistakably established muscle damage to Muscle Groups XIII and XV.  This muscle damage is demonstrated in the April 1968 VA examination report, which expressly notes that the Veteran has a four-inch vertical scar in the mesial lower third of the right thigh, Muscle Group XV, and a four-inch lateral scar, Muscle Group XIII.  These scars represent the entrance and exit wounds from the bullet that shattered the Veteran's femur and penetrated Muscle Groups XIII and XV in the process.  

The Board thus finds that the record clearly and unmistakably reflects that the Veteran suffered a compound comminuted fracture of the right femur with muscle damage to Muscle Groups XIII and XV.  This situation is expressly contemplated by 38 C.F.R. § 4.72 (1967) and clearly unmistakably warrants "severe" evaluations for disabilities of Muscle Groups XIII and XV.  

The Board thus finds that the relevant regulatory provisions of 38 C.F.R. § 4.72 (1967), as extant at that time, were incorrectly applied.  This satisfies the first Damrel element.

The Board also finds that the second Damrel requirement is satisfied.  First, the Board finds that the error in the case at hand was undebatable in that there was clear and unmistakable evidence of a compound comminuted fracture of the right leg and of damage to Muscle Groups XIII and XV.  Had this error not been made, VA would have applied 38 C.F.R. § 4.55 (1967) to determine the appropriate disability rating or ratings for the muscle injuries at issue.  

While it is not clear whether the 30 percent rating that was assigned in the June 1968 rating decision represents a finding of moderately severe injury to Muscle Group XIII or a finding of severe injury to Muscle Group XV, it is clear that the single 30 percent rating is not the proper outcome of application of 38 C.F.R. § 4.55 (1967).  

Under 38 C.F.R. § 4.55(a) (1967), muscle injuries in the same anatomical region (as are Muscle Groups XIII and XV) 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.  

Under 38 C.F.R. § 4.55(b) (1967), two or more severe muscle injuries affecting the motion (particularly strength of motion) about a single joint may be combined but not in combination receive more than the rating for ankylosis of that joint at an "intermediate" angle.

Because the Board has found that the evidence clearly and unmistakably shows that the Veteran had severe injuries to Muscle Groups XIII and XV, 38 C.F.R. § 4.55(b) (1967) requires that the Board combine the 40 percent rating that would have been warranted for Muscle Group XIII and the 30 percent rating that would have been warranted for Muscle Group XV.  When these ratings are combined under 38 C.F.R. § 4.25 (1967), a 58 percent rating, which is rounded up to 60 percent, results.  

However, as noted above, the combination of these two ratings may not exceed that for ankylosis of that joint at an "intermediate" angle.  38 C.F.R. § 4.55(b) (1967).  The joint involved in the case at hand is the knee joint, as the pertinent findings of record pertain to the distal portion of the femur.  Ankylosis of the knee was evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5256 (1967).  This diagnostic code assigned a 30 percent rating for favorable ankylosis in full extension, or in slight flexion between 0 degrees and 10 degrees.  A 40 percent rating was assigned for ankylosis in flexion between 10 degrees and 20 degrees.  A 50 percent rating was assigned for ankylosis in flexion between 20 degrees and 45 degrees.  A 60 percent rating was assigned for extremely unfavorable ankylosis in flexion at an ankle of 45 degrees or more.  

The Board finds that intermediate ankylosis in this case is represented by flexion between 20 degrees and 45 degrees, which warrants a 50 percent rating.  The Board thus finds that a 50 percent rating, but no more, may be assigned pursuant to 38 C.F.R. § 4.55(b) (1967).  

Because a 50 percent rating,  rather than a 30 percent rating, would have been warranted had VA correctly applied 38 C.F.R. § 4.72 in the June 1968 rating decision, the Board finds that VA's error resulted in the Veteran's receipt of a disability rating that is less than that to which he was entitled.  This error thus manifestly changed the outcome of the Veteran's claim at the time it was made.  Therefore, the second Damrel element is satisfied.

The third Damrel element has been satisfied as well, as the Board has applied the law as it existed at the time of the June 1968 rating decision.  The Board has also only cited to evidence that was of record at the time of the June 1968 rating decision.

In short, the Board finds that there was clear and unmistakable error in the June 1968 rating decision that assigned a single 30 percent disability rating for the Veteran's residuals of a gunshot wound to the right thigh with compound comminuted fracture and damage to Muscle Groups XIII and XV.  The evidence clearly and unmistakably shows a compound comminuted fracture of the distal shaft of the Veteran's right femur, with muscle damage to Muscle Groups XIII and XV.  Thus, injuries to Muscle Groups XIII and XV should both have been clearly and unmistakably found to be severe pursuant to 38 C.F.R. § 4.72 (1967).  When combined in compliance with 38 C.F.R. § 4.25, 4.55(b), and 4.71a, Diagnostic Code 5256 (1967), the Veteran's residuals of a gunshot wound to the right thigh with compound comminuted fracture and damage to Muscle Groups XIII and XV should clearly and unmistakably have been assigned a 50 percent disability rating effective from January 30, 1968.



ORDER

Clear and unmistakable error having been found in the June 1968 rating decision, an initial 50 percent rating, but no more, is assigned for the residuals of the Veteran's gunshot wound to the right thigh with compound comminuted fracture and damage to Muscle Groups XIII and XV, effective January 30, 1968.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs