Citation Nr: 1325263 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-00 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether an October 30, 1986 decision should be revised on the basis of clear and unmistakable error in that decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, the appellant in this case, had active service from June 1966 to March 1986. He was awarded a Purple Heart and a Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Waco, Texas, Regional Office (RO) which determined that no revision was warranted in the October 1986 rating decision on the basis of clear and unmistakable error. The Board notes that, in December 2009, the Veteran requested a hearing before the Board. However, in September 2011, before a hearing was scheduled, the Veteran withdrew his request. See 38 C.F.R. § 20.704(d) (2012). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT The October 30, 1986 decision by the RO that granted service connection for shell fragment wound residuals, scar to the left knee, and assigned a zero percent rating was made on the basis of the facts known before the adjudicators at that time, the law then in effect was correctly applied, and this rating decision did not contain an undebatable error that was outcome determinative. CONCLUSION OF LAW The October 30, 1986 rating decision that granted service connection for shell fragment wound residuals, scar to the left knee, and assigned a zero percent rating did not involve clear and unmistakable error and may not be reversed or amended on the basis of clear and unmistakable error. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5103A, 5107, 5126 (West 2002), is not applicable to a claim for revision or reversal of a final decision on the basis of CUE. See Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001) (en banc). Legal Criteria for CUE The Veteran seeks revision of a prior final decision issued in October 1986 that granted service connection and assigned an initial non-compensable disability rating for residuals of a shell fragment wound, scar to the left knee. He alleges that the decision contains clear and unmistakable error (CUE). Clear and unmistakable error (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 their results would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell v. Principi, 3 Vet. App. 310 (1992), the Court set forth a three-pronged test for determining when there is CUE present in a prior decision. These are (1) either 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 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 CUE must be based on the record and law that existed a the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. at 313-14. See also Bustos v. West, 179 F. 3d 1378, 1380-81 (Fed. Cir. 1999) (to prove CUE, a claimant must show that an error was outcome-determinative, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined and elaborated on the test set forth in Russell. In Fugo the Court stated: 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...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. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo, 6 Vet. App. at 43-44 (emphases added). Thus, as a threshold matter, a claimant must plead CUE with sufficient particularity. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995) (same). The Court has also held that allegations that previous adjudications have improperly weighed or evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, the Court has held that the VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Significantly, with respect to the third prong of the test, the Board notes that, in Berger v. Brown, 10 Vet. App. 166 (1997), the Court has held that "opinions from this Court that formulate new interpretations of the law subsequent to [a VA] decision cannot be the basis of a valid clear and unmistakable error claim. Id. at 170. The Court reaffirmed this principle in Brewer v. West, 11 Vet. App. 228, 234 (1998) and Smith v. West, 11 Vet. App. 134, 137 (1998). Indeed, in Brewer, the Court held that, although judicial decisions made during the course of an appeal are retroactively applicable to pending appeals, for purposes of adjudicating claims of CUE in a prior VA decision, "new" judicial interpretations of the law that were not issued at the time of the prior VA decision are not applicable. Id. at 234. Legal Criteria in effect at the time of the October 1986 rating decision Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (1986). 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 (1986). Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.54, 4.55, 4.56, and 4.73 (1986). For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 8 anatomical regions including 3 groups for the foot and leg. Four grades of severity of disabilities due to muscle injuries are here recognized for rating purposes: slight, moderate, moderately severe, and severe. The type of disability pictures for these, as set forth in §§ 4.55 and 4.56, will be a basis for each of the 23 muscle groups. The types of disability pictures are 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 mu7scle disability (loss of power, lowered threshold of fatigue, and impairment of coordination). 38 C.F.R. § 4.54 (1986). The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.55 and § 4.56 (1986). Under Diagnostic Codes 5301 to 5323, muscle injuries disabilities are rated as slight, moderate, moderately severe or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d). 38 C.F.R. § 4.56 provides that slight (insignificant) muscle disability is found where there has been a simple wound of the muscle without debridement, infection, or effects of laceration. Regarding history and complaint, service department record of wound of slight severity or relatively brief treatment and return to duty. Healing with good functional results. No consistent complaint of cardinal symptoms of muscle injury or painful residuals. Objective findings would show minimum scar, slight if any evidence of fascial defect or of atrophy or of impaired tonus. No significant impairment of function and no retained metallic fragments. 38 C.F.R. § 4.56(a). The type of injury associated with a moderate muscle disability is a through and through or deep penetrating wound of relatively short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department record or other sufficient evidence of hospitalization in service for treatment of the wound and consistent complaint on record from first examination forward of one or more of the cardinal symptoms of muscle wounds particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, linear or relatively small and so situated as to indicate a relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus and of definite weakness or fatigue in comparative tests (In such tests the rule that with strong efforts, antagonistic muscles relax is to be applied to insure validity of tests). 38 C.F.R. § 4.56(b). Under Diagnostic Codes 5301 to 5328, muscle injuries disabilities are rated as slight, moderate, moderately severe or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. §§ 4.56, 4.73 (1986) Diagnostic Code 5314 pertains to Muscle Group XIV, which affects extension of the knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII in postural support of body; acting with hamstrings in synchronizing hip and knee. A slight impairment in Muscle Group Function XIV receives a noncompensable rating. A moderate impairment receives a 10 percent rating; a moderately severe impairment receives a 30 percent rating; and a severe impairment receives a 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5314. Disability of the musculoskeletal system is primarily the inability due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (1986). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (1986). Under 38 C.F.R. § 4.59 (1986), with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Scars, burn, third degrees, covering an area exceeding 6 square inches are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (1986). Scars that are superficial, poorly nourished, and with repeated ulceration are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7803 (1986). Diagnostic Code 7804 provides that a 10 percent rating is warranted for scars that are superficial, tender and painful on objective demonstration. 38 C.F.R. § 4.118. Other scars are rated based upon limitation of function of part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1986). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 C.F.R. §§ 3.102, 4.3. Analysis As noted, the Veteran argues that there is CUE in the October 1986 rating decision that assigned a zero percent rating to the residuals of a fragment wound, scar to the left knee, under Diagnostic Code 7805. The Veteran argues that the RO failed to address the issue of moderate injury under the regulations for rating shell fragment wounds and consider when a wound is debrided. The Veteran argues that a moderate injury always connotes a minimum compensable rating. The Veteran requested a retroactive award for a compensable rating for the residuals of a shell fragment wound from April 1, 1986 to August 23, 2001. See the April 2008 statement. In an April 2009 statement, the Veteran stated that he disagreed with the August 2008 rating decision which determined that there was no CUE in the October 1986 rating decision and that revision was not warranted. The Veteran argued that the RO had failed to consider 38 C.F.R. § 3.304(d) and 38 U.S.C.A. § 1154(b) on the issue of debridement. The Veteran argued that the RO failed to consider the issue of pain and failed to consider painful motion which would warranted a minimal compensable evaluation under 38 C.F.R. § 4.59. The Veteran also asserted that he wanted an opinion from the General Counsel in this matter. In the December 2009 VA Form 9, the Veteran argued that it more likely as not that the shell fragment wound injury met the requirements of moderate injury at the time of the October 1986 rating decision. As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Phillips; Luallen; supra. Accordingly, the Board will proceed to consider the merits of the Veteran's claim of CUE. At the time of the October 1986 rating decision, the law and regulations concerning disability ratings were essentially the same as they are now. The legal criteria for rating muscle injuries and scars is set forth above. The evidence of record at the time of the October 1986 rating decision consisted of August 1986 and September 1986 VA examination reports and the Veteran's service treatment records. The service treatment records showed that the Veteran received a fragment wound to the left knee from enemy artillery while in a defensive position on June 21, 1968. It was noted that the Veteran's condition was excellent and his prognosis was excellent. He was treated at RAS and was returned to duty. It was noted that he had required treatment by a doctor and a Purple Heart was to be awarded. An April 1970 service examination indicates that examination of the lower extremities was normal. A January 1986 service examination indicates that examination of the lower extremities was normal. Multiple scars were noted on the chest and abdomen but not on the left leg or knee. The Veteran denied having a trick or locked knee or a bone, joint, or other deformity. The August 1986 VA examination report noted that the Veteran reported that he sustained a small fragment wound on the anterior aspect of the left thigh in Vietnam with no residuals although in the past month on two occasions, he has twisted his leg and felt pain and a popping in the knee. Physical examination of the skin revealed no lesions or unusual pigmentations. Physical examination of the extremities revealed normal temperature and color. The September 1986 VA orthopedic examination report indicates that when the Veteran was in Vietnam in 1968, he suffered a superficial shrapnel wound above the left knee from a rocket. There was no fracture. The wound healed and the Veteran had no problem or impairment. The examiner further noted that the Veteran stated that recently, he had been sitting, he twisted his knee, and there was severe pain in the lateral joint. The examiner noted that upon examination there was no obvious atrophy or swelling. The Veteran had full range of motion of the knee. There was no ligamentous instability. The patellar mechanism seemed normal. The examiner noted that the examination was considered to be normal. X-ray examination of the left knee was normal. In an October 1986 rating decision, the RO granted service connection for shell fragment residuals, scar of the left knee, based upon the findings of the service treatment records and the 1986 VA examination reports. The RO indicated in the rating decision that in June 1968, the Veteran suffered a superficial shell fragment wound to the left knee from enemy artillery fire. He was treated and was returned to duty immediately. A zero percent rating was assigned from under Diagnostic Code 7805. In a November 25, 1986 letter, the RO provided the Veteran with notice of the October 1986 decision and appellate rights. The RO informed the Veteran that service connection for a scar was granted at a noncompensable rate. A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question, and not on subsequent determinations of record. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). In determining whether the prior final rating decision is the product of CUE, the question is not whether the Board would have reached the same conclusion, but whether that decision contained an undebatable error that was outcome determinative. After consideration of the record and law that existed at the time of the October 1986 rating decision, the Board concludes that the correct facts as they were known at the time were considered by the RO in the October 1986 rating decision. The Board finds that the October 1986 rating decision was consistent with the law and regulations in effect at that time and the RO correctly applied the statutory and regulatory provisions. The Board finds that the RO's determination that the residuals of the fragment wound to the left knee was manifested by a nonpainful, well healed scar that did not cause any functional impairment thus warranting a noncompensable rating under Diagnostic Code 7805 was supported by evidence of record at that time and was a reasonable exercise of adjudicatory judgment. The service treatment records and the 1986 VA examination reports support the RO's finding that the residuals of the fragment wound to the left knee did not cause any impairment to warrant a compensable rating. The service treatment record indicates that two days after sustaining the fragment wound to the left leg, the Veteran's condition and prognosis were "excellent." The Veteran was returned to duty. The VA examination reports dated in 1986 indicate that the fragment wound had healed, there were no fractures, and no impairment since. The Veteran reported having a recent knee injury by twisting the left knee. However, the VA examination report indicates that examination of the left knee was normal. Further, there was no indication that the recent knee injury or knee symptoms were caused by the fragment wound to the left knee. The Board finds that the RO applied the correct law in the October 1986 decision and the rating decision was supported by evidence of record at that time and was a reasonable exercise of adjudicatory judgment. A noncompensable rating was assigned under the criteria for rating scars. The evidence of record at the time of the October 1986 rating decision does not show any objective findings of poor nourishment, repeated ulceration, tenderness or pain on objective demonstration, or limitation of function of the left knee or leg. See 38 C.F.R. § 4.118, Diagnostic Codes 7802 to 7805 (1986). There was evidence of record at the time of the October 1986 rating decision which supported the assignment of a noncompensable rating under Diagnostic Code 7805. The Veteran contends that at the time of the October 1986 rating decision, the RO should have considered that the fragment wound to the left knee was debrided and this would have amounted to a moderate rating under the criteria for rating muscle injuries. The Veteran also argued that the RO should have considered a minimal compensable rating for painful motion of the left knee or leg due to the fragment wound and the provisions of 38 U.S.C.A. § 1154. As noted above, in making a determination as to whether there is CUE in an earlier rating decision, the Board may not consider the Veteran's current statements as to the severity of his fragment wound or any other evidence that was not part of the record at the time of the October 1986 rating decision. The Board finds that the evidence of record at the time of the October 1986 rating decision tends to show that the Veteran did not sustain any muscle injury to the left leg due to the fragment wound sustained in June 1968. The service treatment record dated in June 1968 does not documents a through or through wound or a penetrating wound. The record indicates that the Veteran required treatment from a doctor and that he was released to duty two days after the injury and his condition and prognosis were "excellent." There is no indication in the service treatment records that the wound was debrided. There was no evidence that the fragment wound injured a muscle in the left leg, caused some loss of deep fascia or muscle substance, or caused impairment of muscle tonus or loss of power or lowered threshold of fatigue compared to the sound side. The service treatment records and the VA examination reports dated in 1986 indicate that the fragment wound to the left knee healed and did not cause any impairment. The evidence of record at the time of the October 1986 rating decision supports a zero percent rating for the residuals of a fragment wound to the left knee under the rating criteria for rating a muscle disability. There is evidence of record at the time of the October 1986 rating decision that supports a finding of slight muscle injury due to the fragment wound to the left knee. There is evidence which supports a finding of insignificant or slight disability to the muscles; relatively brief treatment and a return to duty; healing with good functional results; and objective findings of a minimum scar and no significant impairment of function. See 38 C.F.R. § 4.56(a). There is evidence of record at the time of the October 1986 rating decision that can be interpreted to support the assignment of a compensable rating for moderate muscle disability based upon the findings of the September 1986 VA examination report which shows that the Veteran reported having pain in the left knee. However, a reasonable interpretation of the September 1986 VA examination report could have been that the Veteran had left knee pain due to a post-service twisting injury that was unrelated to the fragment wound to the left knee that was sustained 18 years earlier. The evidence of record at the time of the October 1986 rating decision shows that the Veteran first complained of pain in the left knee at the 1986 VA examination. The service treatment records do not document any complaints of pain due to the fragment wound to the left knee in the 18 years following the injury. When there is evidence both pro and con on the issue, it is impossible for a veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet. App. 84, 88 (2000). In the present case, there is evidence which supports the assignment of the zero percent rating. Reasonable minds could conclude that the residuals of the fragment wound to the left knee was superficial, not more than slight disability, and was manifested by a healed scar with good functional results, and a compensable rating was not warranted. The Veteran is essentially arguing that the RO should have weighed the evidence differently and assigned a compensable evaluation to the residuals of a fragment wound to the left knee in the October 1986 rating decision. The Court has held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. CUEs "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, 313-14 (1992). The claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Id. Thus, the Board finds that the Veteran's argument that the evidence should have been weighed differently fails in establishing CUE in the October 1986 rating decision. The Veteran argues that a compensable rating should have been assigned to the residuals of the fragment wound to the left knee because he underwent debridement and he had painful motion of the left knee. The Veteran first made the statements that he underwent debridement of the fragment wound to the left knee and he had painful motion on the left knee or leg in 2008, over 20 years after the October 1986 rating decision. A determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Thus, the Board may only consider that evidence of record at the time of the October 1986 rating decision and may not consider any evidence associated with the file after that decision when determining if the decision was CUE. Thus, any evidence submitted by the Veteran at the time of the 2008 claim and after that date may not be considered when adjudicating the CUE claim. The evidence of record at the time of the October 1986 rating decision does not establish that the Veteran underwent debridement of the fragment wound to the left knee. The evidence of record at the time of the October 1986 rating decision can reasonably be interpreted to show that the fragment wound of the left knee was healed and caused no impairment and did not cause painful motion. The Veteran has also made some general assertions that the RO did not apply the provisions of 38 U.S.C.A. § 1154 (formerly 38 U.S.C.A. § 354(b)) at the time of the October 1986 rating decision. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 354(b); 38 C.F.R. § 3.304(d) (1986). The Board finds that the RO applied the correct law in the October 1986 decision and the rating decision was supported by evidence of record at that time and was a reasonable exercise of adjudicatory judgment. There is no indication that the provisions of 38 U.S.C.A. § 354(b); 38 C.F.R. § 3.304(d) (1986) were incorrectly applied at the time of the October 1986 rating decision. The Board notes that the evidence of record at the time of the October 1986 rating decision established that the Veteran engaged in combat with the enemy and sustained a fragment wound of the left knee under enemy fire. This fact was not in dispute in October 1986. The Board notes that a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel; supra. The Board may only consider that evidence of record at the time of the October 1986 rating decision and may not consider any evidence associated with the file after that decision when determining if the decision was CUE. Thus, any evidence submitted by the Veteran at the time of the 2008 claim and after that date, including any statements made by the Veteran concerning his combat experience and any wounds sustained in combat may not be considered when adjudicating the CUE claim. Thus, any statement concerning the debridement of the fragment wound to the left knee in service and subsequent symptoms of painful motion in the left knee or leg may not be considered by the Board when adjudicating the CUE claim. For these reasons, the Board finds that the rating decision of October 1986 was adequately supported by the evidence then of record and the statutory and regulatory provisions which existed at the time of the October 1986 rating decision were correctly applied. Therefore, the Board concludes that such determination did not constitute clear and unmistakable error. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). ORDER The October 1986 rating decision was not clearly and unmistakably erroneous and the appeal is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs