Citation Nr: 1803035 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-19 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in an August 1989 rating decision which reduced the Veteran's disability ratings for his service-connected stress periostitis of the left and right tibia from 10 percent ratings to noncompensable ratings. 2. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. 3. Entitlement to a disability rating in excess of 20 percent for plantar fasciitis, left foot, with interdigital plantar neuroma. 4. Entitlement to a disability rating in excess of 20 percent for plantar fasciitis, right foot, with interdigital plantar neuroma. 5. Entitlement to a compensable disability rating for tarsal tunnel syndrome of the right foot. 6. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Veteran submitted additional evidence at the hearing, but waived RO consideration of that evidence on the record. The Board notes that during the July 2017 Board hearing, the Veteran expressed a desire to file a claim for an earlier effective date for his flat feet. The Veteran is not service connected for flat feet, but is service connected for other foot disabilities, including plantar fasciitis and tarsal tunnel syndrome. The RO should clarify whether the Veteran wishes to file a claim to reopen his claim for entitlement to service connection for flat feet, or if he wishes to file a claim for an earlier effective date for one of his service-connected foot disabilities. The issues of entitlement to increased disability ratings for major depressive disorder, plantar fasciitis of the left, plantar fasciitis of the right foot, and tarsal tunnel syndrome of the right foot and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In the August 1989 rating decision, the RO granted service connection for stress periostitis of the left and right tibia with 10 percent disability ratings, effective October 5, 1988, and then reduced the disability ratings to noncompensable ratings, effective August 1, 1989. 2. The 10 percent ratings for the Veteran's stress periostitis of the left and right tibia were in effect for fewer than 5 years. 3. The1989 VA examination found no clinical or x-ray evidence of stress periostitis of the left and right tibia. 4. The August 1989 RO decision that granted 10 percent disability ratings for stress periostitis of the left and right tibia and then reduced the ratings to noncompensable, effective August 1, 1989, was reasonably supported by evidence then of record and prevailing legal authority and was not clearly and unmistakably erroneous. CONCLUSION OF LAW The August 1989 rating decision that granted 10 percent disability ratings for stress periostitis of the left and right tibia and then reduced the ratings to noncompensable, effective August 1, did not contain CUE. 38 U.S.C. § 7105(c) (2014); 38 C.F.R. §§ 3.104, 3.105, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As VA's notification and assistance duties are not applicable to CUE motions, discussion of these duties is unnecessary. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc). The Veteran asserts CUE in the August 1989 rating decision which granted 10 percent disability ratings for stress periostitis of the left and right tibia, effective October 5, 1988, and then reduced the disability ratings to noncompensable, effective August 1, 1989. He contends he was not provided with an adequate examination to determine the severity of his disabilities and that his disability ratings should not have been reduced without an examination equal to that upon which the benefits were granted. See July 2017 Board Hearing Transcript. The Veteran also contends he should not have had his disability ratings reduced during the 12-months following his separation from service. Id. Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of CUE. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2017). If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 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. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Fugo, 6 Vet. App. at 44. The Court has established a three-pronged test, each of which must be met before CUE is established: either (1) 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 at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). VA law applicable at the time of the August 1989 rating decision provided that where a reduction in evaluation of a service-connected disability or employability status was considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, immediate rating action would be taken. The reduction was made effective the last day of the month in which a 60-day period from the date of notice to the veteran expired. The veteran was notified at his or her latest address of record of the action taken and furnished detailed reasons therefor, and was given 60 days thereafter for the presentation of additional evidence. 38 C.F.R. § 3.105(e) (1989). Significantly, it was not until May 11, 1990, that the regulation was amended to require "a rating proposing the reduction or discontinuance" and, after the expiration of 60 days for the presentation of additional evidence, "a final rating action" that effectuates the reduction. See 55 Fed. Reg. 13522 (Apr. 11, 1990). Under 38 C.F.R. § 3.344(a), ratings on account of diseases subject to temporary or episodic improvement were not to be reduced on any one examination, except in those instances where all the evidence of record clearly warranted the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition was clearly reflected, the rating agency considered whether the evidence made it reasonably certain that the improvement would be maintained under the ordinary conditions of life. These considerations were required for ratings which had continued for long periods at the same level (five years or more). 38 C.F.R. § 3.344(c). As an initial matter, the Board finds the allegations of CUE made by the Veteran are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). By way of history, the Veteran had complaints of lower leg pain throughout service and a June 1988 bone scan of the Veteran's tibias tested positive for abnormalities. The Veteran was diagnosed with stress periostitis of the left and right tibia and in August 1988, Physical Evaluation Board Proceedings determined that the Veteran's medical condition prevented satisfactory performance of duty. He separated from service with disability severance pay at 20 percent combined for his tibia disabilities. Although the Veteran filed an application for compensation at the time of his separation, the RO never received the claim and in February 1989, the Veteran resubmitted his application for entitlement to service connection for stress periostitis of the left and right tibia. In August 1989, the RO issued a rating decision that granted a 10 percent disability rating for stress periostitis of each tibia, effective October 5, 1988, and decreased the Veteran's compensation to noncompensable, effective August 1, 1989, due to the absence of clinical or x-ray evidence of the condition during his VA examination. No additional evidence was received and the Veteran did not submit a notice of disagreement within one year. Thus, the August 1989 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 20.1103 (2017). The evidence of record at the time of the rating decision included the Veteran's in-service Physical Evaluation Board Proceedings and post-service treatment records, as well as his statements. The August 1988 Physical Evaluation Board Proceedings contained a Medical Board Summary which detailed that the Veteran had been significantly impaired since the beginning of basic training in January 1988. Despite frequent profiling, the Veteran was advanced through basic training. The Veteran could not run or march and a bone scan performed in June 1988 was positive for abnormalities. The physician noted that it was not expected that the Veteran would be able to perform adequately in his military occupational specialty (MOS) but his condition should eventually improve over one year. A February 1989 radiology report noted a clinical history of bilateral lower leg pain and stress periostitis on bone scan in June 1988. X-rays of the tibia and fibula revealed bilateral linear lucencies felt to be consistent with vascular grooves. No periosteal reaction was seen to suggest periostitis. The interpreting radiologist noted that bone scans were more sensitive than plain films in diagnosing early bony lesions. A March 1989 treatment record noted that the Veteran had complaints of pain and was taking Vicodin regularly. The clinician noted less inflammation along the tibias, but still tender nodular areas almost to the knee. The Veteran was diagnosed with [illegible] periostitis, prescribed Naprosyn, and referred to podiatry for foot arches. Subsequent to the submission of his February 1989 claim for stress periostitis of the left and right tibia, the Veteran was afforded a VA examination. The Veteran's vitals were recorded and his musculoskeletal system was examined. The VA examiner noted the Veteran's history of chronic ache in his entire legs, which was made worse with standing or walking, and precipitated running in basic training. He noted that the Veteran walked into the office with a normal gait and had no difficulty getting in and out of a seated position, on or off of the examining table, and in or out of recumbency. Both legs had a normal appearance, with no redness, swelling, or increased warmth. The Veteran had good strength in his musculature of both lower extremities and full range of motion at the hips, knees, and ankles. There was no evidence of lateral or medial instability and examination was negative for anterior and posterior drawer sign. The Veteran was noted to rise well on his heels and toes, and to squat normally. The Board recognizes that the exact date of the VA examination is unclear. There exists a Report of Medical Examination for Disability Evaluation, signed by the Veteran on April 13, 1989, and a Report of Medical Examination for Disability Evaluation signed by the examining physician on September 1, 1989 and by a reviewing officer on August 1, 1989. Both reports contain information regarding the Veteran's stress periostitis. Further, lab work accompanying the examination report was dated on April 18, 1989. While it appears the lab work, examination, and certification of the examination report were completed at different times, taken together, they make up a complete VA examination which was available to the RO when it rendered its decision on the matter. The Board finds the examination to have been adequate for RO consideration. In viewing the evidence of record at the time of the August 1989 rating decision in conjunction with the pertinent laws and regulations in effect at that time, the Board finds that there was a basis for awarding a noncompensable disability rating from August 1, 1989. The correct facts were before the RO at the time of the August 1989 rating decision and the RO applied the laws in effect at the time when granting the Veteran a 10 percent disability rating for each tibia beginning the day after separation from service, and reducing the ratings based on a factual determination that the Veteran's service-connected stress periostitis of the left and right tibia had improved. The 1989 VA examiner noted the Veteran's history of stress periostitis of the tibias, which was revealed by bone scan in 1988. The examiner conducted an examination of the Veteran's musculoskeletal system, which revealed no clinical evidence of periostitis, and reviewed x-rays of the Veteran's tibia and fibula that had been taken in February 1989. While no periosteal reaction was seen to suggest periostitis, information provided by the interpreting radiologist regarding the sensitivity of bone scans to plain films clearly followed the x-ray findings. Hence, the VA examiner was aware of the Veteran's history and current disability picture when he refrained from ordering a bone scan. The Board has considered the Veteran's contention that the RO erred in its determination because his stress periostitis had never improved and that a bone scan would have revealed the true severity of his disabilities. In support of his claim that his stress periostitis was continuous and would have been evident had he been provided a bone scan, the Veteran referenced a 1995 bone scan of his tibias which revealed stress periostitis and ultimately led to an increased disability rating of 10 percent for each leg in a July 1997 rating decision. The Veteran's contentions are essentially disagreements as to how the facts were weighed or evaluated and does not constitute CUE. See, e.g., Russell, 3 Vet. App. at 313-14. The Board notes that CUE allegations alleging duty to assist errors, whether due to the perceived inadequate expertise of the VA examiner or due to the perceived inadequacy of the examination, cannot constitute the basis for a CUE allegation. See 38 C.F.R. § 20.1403(d)(2). The deficiencies in an examination only leave an incomplete record rather than an incorrect one and are thus not CUE. Caffrey v. Brown, 6 Vet. App. 377 (1994). While later findings might tend to contradict the VA examiner's assessment, this is no basis to find CUE in the RO's determination. The 1995 bone scan revealing stress periostitis of the tibias was conducted six years after the 1989 VA examination and this evidence was not available to the RO at the time of the August 1989 rating decision. Further, errors made in the duty to assist, such as the possibility of having obtained a specialized VA examination, are, by law, not CUE. See 38 C.F.R. § 20.1403(d)(2). The Board further notes that the Veteran asserts that the determination in the August 1989 rating decision to reduce his disability ratings to noncompensable ratings for his stress periostitis was based on a fraudulent document. He contends that while the rating decision stated there was no clinical or x-ray evidence of the condition, he discovered a copy of the Report of Medical Examination for Disability Evaluation that listed a diagnosis of bilateral chronic tibial stress and history of [illegible] periostitis. As noted above, the Board recognizes there exists 1989 VA examination reports with different dates; however, there is no evidence that this report containing a diagnosis was not reviewed and considered by the RO when making its determination. This diagnosis is evidence, as are the clinical and x-ray findings, and how evidence is weighed and evaluated by the RO, by law, are not allegations of CUE. See 38 C.F.R. § 20.1403(d) (2017); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Clear and unmistakable error is not the misinterpretation of facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Next, the Board acknowledges the Veteran's contentions that according to 38 C.F.R. § 3.344, his disability ratings should have not been reduced without providing him with an examination, i.e., a bone scan, equal to that upon which his 10 percent disability ratings were granted. While 38 C.F.R. § 3.344(a) does indeed prohibit examinations less full and complete than those which payments were authorized to be the basis of reduction, 38 C.F.R. § 3.344(c) explicitly states that this provision applies to ratings that have been continued at the same level for five years or more. Further, it does not apply to disabilities that are not stabilized or are likely to improve. As the Veteran's 10 percent disability ratings for his stress periostitis of the tibias were only in effect for 10 months, and as the August 1988 Medical Board Summary noted that the Veteran's condition should eventually improve over the course of one year, the Board finds the provisions of 38 C.F.R. § 3.344 inapplicable to the present case. Finally, the Board notes that the Veteran also alleges that according to 38 C.F.R. § 4.28, his disability ratings for stress periostitis of the left and right tibia should not have been reduced at any time during the 12 months following his separation from service. The Board notes that pursuant to 38 C.F.R. § 4.28, a 50 percent rating may be assigned, in lieu of ratings prescribed elsewhere, for disability from any disease or injury where there are unhealed or incompletely healed wounds or injuries, or where material impairment of employability is likely and a 100 percent rating may be assigned, in lieu of ratings prescribed elsewhere, for disability from any disease or injury where there is an unstabilized condition with severe disability, or substantially gainful employment is not feasible or advisable. The Board finds that provisions of 38 C.F.R. § 4.28 are not applicable in the present case, as the Veteran has never been assigned a prestabilization rating. In this case, the Veteran and his representative have not shown that the correct facts, as they were known at that time, were not before the adjudicator, or that the statutory or regulatory provisions extant at that time were incorrectly applied. The record does not establish that there was an undebatable error which, had it not been made, would have manifestly changed the outcome at the time it was made. The Board is sympathetic to the arguments submitted by the Veteran supporting his CUE claim. However, the Veteran's arguments do not support a finding of CUE in the August 1989 rating decision. As such, these cannot be used to support legal entitlement to the benefits sought on appeal. Therefore, the Board finds that the August 1989 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. As such, the Board finds that the Veteran fails to establish factual or legal error rising to the level of CUE in the August 1989 rating decision that assigned the Veteran noncompensable disability ratings for stress periostitis of the left and right tibia, effective August 1, 1989. Hence, the criteria have not been met for reversing or revising the prior decision on the basis of CUE. ORDER As there was no clear and unmistakable error in the August 1989 rating decision which assigned the Veteran's service-connected stress periostitis of the left and right tibia 10 percent disability ratings, effective October 5, 1988, and then reduced the disability ratings to noncompensable, effect August 1, 1989; the appeal as to this issue is denied. REMAND Initially, the Board observes that the evidentiary record includes statements indicating that the Veteran has been awarded disability benefits from the Social Security Administration (SSA). See December 1996 Personal Appearance Hearing Transcript, Dr. K. K.'s January 2011 Statement, and July 2017 Board Hearing Transcript. A September 2014 statement from the Veteran stated that he had been awarded SSA disability benefits since 1995 due to disabilities of the legs and feet. Review of the record indicates that records pertaining to this award are not associated with the electronic record. Given that the records held by SSA include those pertinent to the disabilities at issue in this appeal, the Board finds that a remand for such records is warranted. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). As the content of any records held by SSA is unclear, the Board concludes that a determination on the issues on appeal cannot be made absent records held by SSA. Accordingly, on remand, the AOJ must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. The Board also finds that remand is necessary to afford the Veteran contemporaneous examinations to determine the current severity of his major depressive disorder, bilateral plantar fasciitis, and tarsal tunnel syndrome disabilities. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). In the July 2017 Board hearing, the Veteran testified that his service-connected major depressive disorder had increased in severity since his last VA examination. The Veteran also testified that he used a wheelchair two to four weeks a year and rode a four-wheeler or tractor for mobility. He felt as if his legs had lost all function. The Board notes that the Veteran's last VA examination was conducted in April 2010, more than seven years ago. The 2010 VA examination noted that the Veteran did not use assistive devices to aid in walking and had no trouble ambulating at that time. As it seems the Veteran's service-connected disabilities may have worsened since his last examination, on remand, the Veteran should be afforded VA examinations to determine the severity of current manifestations of his major depressive disorder, bilateral plantar fasciitis, and tarsal tunnel syndrome disabilities. While on remand, updated treatment records should also be obtained and associated with the evidentiary record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his major depressive disorder, bilateral plantar fasciitis, and/or tarsal tunnel syndrome. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Contact the Social Security Administration and obtain any records pertaining to the Veteran's claim for disability benefits. Add all such records to the electronic claims file, and appropriately document if such records are unavailable. 3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected major depressive disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should also discuss the impact, if any, the Veteran's major depressive disorder has on his activities of daily living, including his ability to obtain and maintain employment. The supporting rationale for all opinions expressed must be provided. 4. After any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected bilateral plantar fasciitis with interdigital plantar neuroma. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should also discuss the impact, if any, the Veteran's bilateral plantar fasciitis with interdigital plantar neuroma, has on his activities of daily living, including his ability to obtain and maintain employment. The supporting rationale for all opinions expressed must be provided. 5. After any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected tarsal tunnel syndrome of the right foot. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should also discuss the impact, if any, the Veteran's tarsal tunnel syndrome of the right foot has on his activities of daily living, including his ability to obtain and maintain employment. The supporting rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs