Citation Nr: 1321378 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-39 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for right sciatic nerve compression. 2. Whether an August 8, 1989 rating decision should be revised on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to January 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The CUE issue has been recharacterized to comport with the evidence of record. The Veteran also appealed the denial of claims for SMC based on the need for aid and attendance, and service connection for bowel dysfunction. These claims were granted in a December 2011 rating decision, and are no longer before the Board. A claim of entitlement to SMC based on loss of use of the left upper extremity has been raised by the evidence of record. Additionally, in April 2013, the Veteran, through his representative, raised the question of whether there was CUE in the failure to adjudicate an implied claim of service connection for right sciatic nerve compression in an August 8, 1989 rating decision. These claims are referred to the agency of original jurisdiction. FINDINGS OF FACT 1. Right sciatic nerve compression was caused by the Veteran's service-connected residuals of a right femur fracture. 2. The Veteran challenges an August 8, 1989 rating decision on the basis of CUE for failure to adjudicate an implied claim of entitlement to special monthly compensation (SMC) based on loss of use of the left upper extremity. 3. There was no formal or implied claim of entitlement to SMC based on loss of use of the left upper extremity at the time of the August 8, 1989 rating decision; thus, that decision cannot be the subject of a claim of CUE for failure to adjudicate such a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for right sciatic nerve compression are met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for a finding of clear and unmistakable error in the August 8, 1989 rating decision have not been met. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.157 (1989). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting the claim of service connection for right sciatic nerve compression on a secondary basis. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. The provisions of the Veterans Claims Assistance Act (VCAA) do not apply to a claim based on a previous decision having been the result of CUE. Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc). Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected; service connection may also be established for the degree of aggravation of a nonservice connected condition by a service connected disability. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records reflect that he was struck by a car during his period of active duty. He sustained multiple serious injuries, including a fracture of the right femur. The right femur fracture was stabilized with the insertion of a metal rod, held in place with a pin at the head and neck of the femur. In 1986, the Veteran reported increasing pain in the right lower extremity. A March 1986 X-ray showed heterotopic bone formation around the metal pin inserted into the head and neck of the right femur. In April 1986, the pin was removed. The surgical report reflects "deep heterotopic bone ... adjacent to the sciatic nerve" with a "small portion ... left behind secondary to the difficulty in extracting the bone." The Veteran reported "marked relief of the pain over his right buttock and the periodic paresthesias that he was getting down his right lower extremities extending to the dorsum of his 2d and 3rd toes." A June 1989 statement from an Army physician notes a diagnosis of incomplete right sciatic nerve compression secondary to heterotopic bone. In October 1993, the Veteran was admitted to a VA hospital for right lower extremity pain. His November 1993 discharge summary notes that there was again heterotopic bone formation with right lower extremity radiculopathy. A CT scan and electromyography (EMG) "confirm[ed] a right lower extremity radiculopathy thought secondary to compression of a sciatic nerve from the heterotopic ossification." The Veteran underwent excision of the heterotopic bone formation with right sciatic nerve exploration. A February 1996 statement from the Veteran's VA physician notes a diagnosis of incomplete right sciatic nerve compression secondary to heterotopic bone. Heterotopic bone formation was also observed in January 2003 and February 2004. The Veteran developed heterotopic ossification at the site of a metal pin used to stabilize his right femur fracture. Although the pin was removed in April 1986, heterotopic bone has continued to form, compressing the right sciatic nerve. Multiple treatment providers have found that the Veteran has right lower extremity radiculopathy as a result of the right sciatic nerve compression. No other cause for the Veteran's symptoms has been provided. Service connection for right sciatic nerve compression is warranted. A September 2009 statement of the case noted that "no additional benefits may be awarded" for a disability affecting the right lower extremity, because SMC for loss of use of the extremity has been awarded, and thus to establish service connection for another right lower extremity disability would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. This is an incorrect statement of the law. The rule against pyramiding states that assigning multiple ratings for the same symptoms or manifestations is prohibited. Id. It does not, however, state that service connection for a particular disability cannot be awarded simply because rating that disability may result in pyramiding. Consequently, consideration of the rule against pyramiding at this time is premature. The RO will have the opportunity to address the matter when considering the assignment of a rating. CUE A February 1, 1989 Board decision found that the requirements for special housing assistance or other home adaptation grant were met, as were the requirements for a certificate of eligibility for assistance in acquiring an automobile or other adaptive conveyance with specially adapted equipment. In an August 8, 1989 rating decision, the RO implemented the Board's decision, nothing that SMC for loss of use of both lower extremities had previously been established. There was no discussion of any claim, formal or implied, for SMC for loss of use of the left upper extremity. The Veteran did not appeal the decision, and it became final. RO decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). The Veteran now alleges that the August 1989 rating decision failed to address an implied claim of entitlement to SMC for loss of use of the upper left extremity, and has challenged the decision through a motion of CUE. Failure to address an implied claim is an action that can be challenged through a motion of CUE. Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). When presented with such a challenge, VA must first give a full and sympathetic reading to the claimant's prior submissions to determine whether such a claim was reasonably raised. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A claim is "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is a "communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Id. Service connection for incomplete paralysis of the left upper extremity was granted by a February 1988 rating decision, and a 30 percent disability evaluation was assigned. The decision noted that the Veteran was able to ambulate "with a quadruplet gait with two crutches," indicating that the Veteran was able to both move and bear weight on his left upper extremity. The Veteran did not file an appeal with respect to the assigned rating, or file a subsequent claim for SMC based on loss of use of the left upper extremity. VA clinical notes reflect that the Veteran was able to ambulate with the use of crutches at the time of the August 1989 rating decision. The first indication of potential loss of use of the left upper extremity is a January 2006 clinical note, reflecting that the left arm was not weak, but gave way upon examination. There is no evidence that either a formal or an informal claim for service connection for SMC for loss of use of the left upper extremity was pending at the time of the August 1989 rating decision. There is no indication that the Veteran filed a claim for SMC, nor can such a claim be implied in any of his communications prior to that date. VA treatment records prior to the August 1989 rating decision reflect that the Veteran was able to use his left upper extremity to bear weight on crutches and ambulate. Although the function of that extremity was clearly impaired, a claim of entitlement to SMC based on loss of use of the left upper extremity is not reasonably raised by the evidence of record. As there was no written expression of intent to apply for SMC for loss of use of the left upper extremity prior to August 1989, nor was such a claim raised by the evidence of record, there is no basis for concluding that a claim for SMC based on loss of use of the left upper extremity was pending at the time of the August 1989 rating decision. As a result, the August 1989 RO decision was not final and binding with respect to any SMC claim. As a matter of law, that rating decision cannot be the subject of a claim of CUE regarding entitlement to SMC based on loss of use of the left upper extremity. ORDER Entitlement to service connection for right sciatic nerve compression is granted. The motion for revision of the August 8, 1989 rating decision based on CUE is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs