Citation Nr: 18153304 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 17-23 279 DATE: November 27, 2018 ORDER As the November 22, 1954 Department of Veterans Affairs (VA) Reginal Office (RO) rating decision contained clear and unmistakable error (CUE) in the assignment of a 10 percent initial disability rating for the service connected left ankle disability, the November 22, 1954 rating decision is revised to reflect a grant of an initial 30 percent disability rating, effective August 30, 1954. FINDING OF FACT The November 22, 1954 rating decision assigning an initial 10 percent disability rating for the service connected left ankle disability was not based on the law and evidence then of record, and did not constitute a reasonable exercise of rating judgment; but for the factual and legal error, the outcome would have been manifestly different, namely, an initial disability rating of 30 percent would have been assigned from August 30, 1954, the day after separation from service, for the service connected left ankle disability. CONCLUSION OF LAW Clear and unmistakable error is shown in the November 22, 1954 rating decision to the extent it did not assign an initial disability rating of 30 percent for the service connected left ankle disability from August 30, 1954, the day after separation from service. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from August 1950 to August 1954. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of the RO in Chicago, Illinois. The instant matter was previously before the Board in September 2017, where the issue on appeal was denied. The Veteran appealed the September 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated June 2018, the Court granted a Joint Motion for Remand (JMR), which remanded the issue on appeal back to the Board for development consistent with the JMR. Per the JMR, the parties agreed that the Board failed to address evidence of tendon and nerve damage in its CUE analysis. The Board addresses the Court’s findings and concerns in the decision below. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue on appeal. CUE in November 22, 1954 Initial Disability Rating for Left Ankle Disability Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 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. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior 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 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) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of 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 one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the November 22, 1954, rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran and representative 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). Upon service connection for a left ankle disability being granted in the November 22, 1954, rating decision, the disability was rated under 38 C.F.R. § 4.73, Diagnostic Code 5312. At the time of the November 22, 1954 rating decision, a 30 percent disability rating was warranted for a severe injury of Muscle Group XII. 38 C.F.R. § 4.73, Diagnostic Code 5312 (1954). Further, pursuant to 38 C.F.R. § 4.72, in rating disability from injuries of the musculoskeletal system, attention was to be given first to the deeper structures injured, bones, joints, and nerves. 38 C.F.R. § 4.72 (1954). Further, when there was a compound comminuted fracture and definite muscle or tendon damage from a missile, the rating assigned should be at the severe level. Id. It was noted, however, there were locations, as in the wrist or over the tibia, where muscle damage might be minimal or damage to tendons repaired by suture, and in such cases requirements for severe ratings are not necessarily met. Id. In an October 2018 brief, the Veteran’s representative argued that the RO committed an error of law in November 1954 when it failed to properly interpret the relevant rating law and assign the Veteran an initial disability rating of 30 percent for the service connected ankle disability. Specifically, the representative argued that the evidence showed the Veteran had a compound comminuted fracture and definite muscle or tendon damage from a missile at that time. Service treatment records from January 1953 reflect that the Veteran’s lower extremities were injured in a grenade attack while the Veteran was serving in the Republic of Korea. The grenade injury resulted in a compound comminuted fracture of the left medial malleolus (left ankle). Service treatment records from January 1953 also convey that the Veteran was directed to continue muscle building exercises daily, which indicates that the Veteran sustained some muscle injury/damage. Subsequently, in March 1953, the Veteran was diagnosed with tenosynovitis of the left post tibial tendon due to the grenade injury, which showed that the Veteran had sustained tendon damage in the grenade attack. In August 1953, the Veteran underwent surgery to treat traumatic neuroma of the left great sural nerve, which indicates that the Veteran also sustained nerve damage in the attack. At the time of the November 22, 1954 RO rating decision, the evidence of record showed that, during service, the Veteran sustained a grenade injury to the left ankle that resulted in a compound comminuted fracture. Service treatment records indicate that the injury also resulted in tendon, nerve, and muscle damage, which, with some exception not definitively shown here, entitled the Veteran to a disability rating at the “severe” level; therefore, the Board finds that the RO failed to properly apply 38 C.F.R. § 4.72 and 38 C.F.R. § 4.73 when deciding the appropriate initial disability rating for the service connected left ankle disability. As the RO failed to properly apply 38 C.F.R. § 4.72 and 38 C.F.R. § 4.73 in making the initial disability rating determination, the RO committed an undebatable legal error that, had it not been made, would have resulted in the assignment of an initial 30 percent disability rating, the maximum schedular rating, for the service connected left ankle disability from August 30, 1954, the day after separation from service. For the aforementioned reasons, the November 22, 1954 RO rating decision will be revised to reflect an initial disability rating of 30 percent under Diagnostic Code 5312 (1954) for the service connected left ankle disability from August 30, 1954. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel