Citation Nr: 18159631 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-29 049 DATE: December 19, 2018 ORDER The July 13, 1981 Board of Veterans’ Appeals (Board) decision, having been found to be clearly and unmistakably erroneous in not adjudicating the appeal of the propriety of the reduction in disability rating from 10 percent to zero percent for residuals of a fracture of the right ankle (a right ankle disability), is revised to reflect that such reduction was not proper and the 10 percent rating under Diagnostic Code (DC) 5271 is restored, effective January 1, 1980. FINDINGS OF FACT 1. In an October 1979 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) reduced the disability rating for the Veteran’s service-connected right ankle disability from 10 to zero percent under DC 5271, effective January 1, 1980. The moving party appealed this decision. 2. In a final decision dated July 13, 1981, the Board denied the claim of “entitlement to an increased rating for residuals of a fracture of the right ankle, currently rated as noncompensable.” 3. The July 13, 1981 Board decision contained legal error in failing to adjudicate whether the reduction in rating for the Veteran’s service-connected right ankle disability from 10 to zero percent under DC 5271, effective January 1, 1980, was proper. 4. But for the legal error in the July 13, 1981 Board decision, the outcome would have been manifestly different and the 10 percent rating under Diagnostic Code (DC) 5271 would have been restored, effective January 1, 1980. CONCLUSION OF LAW The July 13, 1981 Board decision that did not adjudicate the issue of the propriety of the reduction in disability rating from 10 percent to zero percent for a right ankle disability was clearly and unmistakably erroneous, and is revised to for the cause of the Veteran’s death. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the moving party, had active service from February 1971 to May 1973. This matter is currently before the Board on the moving party’s April 2015 motion for revision or reversal on the grounds of CUE in the July 13, 1981 Board decision that denied entitlement to an increased rating for the Veteran’s right ankle disability and did not adjudicate the issue of the propriety of the reduction in disability rating from 10 percent to zero percent for the service-connected right ankle disability. 1. Whether there was CUE in a July 13, 1981 Board decision that did not adjudicate the issue of the propriety of the reduction in disability rating from 10 percent to zero percent for the service-connected right ankle disability. Applicable Caselaw, Statutory, and Regulatory Provisions A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). The Board finds that the present motion complied with these requirements and the motion is properly before the Board for consideration on the merits. Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. 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. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (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 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 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 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Examples of situations that are not CUE include: (1) a new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA’s duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Weaver v. Principi, 14 Vet. App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision. 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Discussion The Veterans Claims Assistance Act of 2000 (VCAA) is inapplicable to CUE claims, and therefore need not be discussed herein. Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); 38 C.F.R. § 20.1411(c). In the present case, the moving party alleges CUE in a July 13, 1981 Board decision that denied entitlement to an increased rating for a right ankle disability and did not adjudicate the issue of the propriety of the reduction in disability rating from 10 percent to zero percent for the service-connected right ankle disability. By way of background, in an October 1979 rating decision, the RO decreased the Veterans disability rating for a right ankle disability from 10 percent to zero percent disabling, effective January 1, 1980. The Veteran appealed this decision, and the Board denied entitlement to an increased rating for a right ankle disability in a July 13, 1981 decision. The Veteran’s representative contends that there was CUE in the July 13, 1981 Board decision because such decision should have adjudicated the issue propriety of the reduction in disability rating from 10 percent to zero percent for the service-connected right ankle disability, because the rating decision that gave rise to the increased rating issue adjudicated by the Board in the July 13, 1981 decision simultaneously reduced the Veteran’s rating for a right ankle disability and denied an increased rating for the right ankle disability. The representative essentially asserts that the Board should have addressed both the reduction and increased rating issues in the July 13, 1981 decision. The Board finds that the Veteran’s disagreement with the denial of an increased rating for the right ankle disability was also a disagreement with the reduction in rating for right ankle disability, as the issue of the propriety of the reduction for the right ankle disability is an inherent part of the Veteran’s disagreement with the denial of an increased rating for the right ankle disability. Thus, the Board erred as a matter of law in not adjudicating one of the issues on appeal. Thus, the remaining issue is whether such error of law in the July 13, 1981 Board decision was of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” such that the reduction in rating for the right ankle disability from 10 percent to zero percent disabling would not have been made. The law that was in effect at the time of the July 13, 1981 Board decision provided that, as a general rule, VA must abide by specific procedural protections that apply when a veteran’s rating is reduced. 38 C.F.R. § 3.105(e) (1981). Specifically, where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance in compensation payments currently being made, rating action will be taken. Id. The reduction will be made effective the last day of the month in which a 60-day period from date of notice to the payee expires. Id. The veteran will be notified at his or her latest address of record of the action taken and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. Id. In this case, the Veteran’s only compensable rating at the time of the October 1979 rating decision was the right ankle disability. Therefore, this reduction in the rating of the right ankle disability resulted in a discontinuance of compensation payments currently being made. However, 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, thereby giving the Veteran 60 days for the presentation of additional evidence. As such, the procedural requirements of 38 C.F.R. § 3.105(e) were met. Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344. The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344(b). The Veteran’s right ankle disability was rated under DC 5271, applicable to limitation of motion of the ankle. The basic laws and regulations regarding rating the right ankle disability at the time of the July 13, 1981 Board decision was issued were similar, if not essentially the same, as they are now. Specifically, DC 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent evaluation is the highest warranted for limitation of motion of the ankle. Normal ranges of motion of the ankle are dorsiflexion from zero degrees to 20 degrees, and plantar flexion from zero degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Words such as “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. Moreover, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. 38 C.F.R. § 4.40. Consideration must also be given to weakened movement, premature or excess fatigability and incoordination. 38 C.F.R. § 4.45. The Board finds that the lay and medical evidence of record at the time of the July 13, 1981 Board decision clearly and unmistakably showed that the Veteran’s right ankle disability manifested in symptoms of functional loss due to pain. Such evidence included the September 1979 VA examination report indicating that the Veteran “takes an occasional analgesic” and limitation mostly revolved around tiring after long periods of standing and inability to get push off while running. By way of reference, “analgesic” is defined as “an agent that alleviates pain without causing loss of consciousness.” See Dorland’s Illustrated Medical Dictionary 71 (32nd ed. 2012). The Board notes that pain was the only right ankle disability symptom noted on the September 1973 rating decision that granted service connection for a right ankle disability and assigned a 10 percent initial rating. The July 1973 VA examination on which the rating decision was based did not indicate the range of motion findings, but did reference right ankle pain. Thus, the Board finds that VA did not meet its burden, as the evidence of record clearly and unmistakably does not show improvement in the Veteran’s right ankle disability, as the Veteran symptom of pain and fatigability had not improved at the time of the October 1979 rating decision that the reduced the rating for the right ankle disability. For these reasons, the Board finds that the statutory or regulatory provisions extant at the time of the July 1981 rating decision were incorrectly applied and the error is “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made.” Per the law in effect at the time of the July 13, 1981 Board decision, discussed above once the evidence of record established that the Veteran’s right ankle disability had not improved, the 10 percent rating for a right ankle disability would have clearly and unmistakably been restored, effective January 1, 1980. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, DC 5271. “which, had it not been made, would have manifestly changed the outcome at the time it was made, such that the reduction in disability rating from 10 percent to zero percent for the service-connected right ankle disability would have been found to have been improper and the prior 10 percent rating. Thus, after considering the moving party’s contentions and the evidence of record at the time of the July 13, 1981 Board decision, the Board finds clear legal error in the July 13, 1981 Board decision that did not adjudicate the issue of the propriety of the reduction in disability rating from 10 percent to zero percent for the service-connected right ankle disability, such that the statutory and regulatory provisions extant at the time were not applied. Moreover, had such legal error not been committed, the July 13, 1981 Board decision manifestly would have restored the previous 10 percent rating for a right ankle disability under 38 U.S.C. § 1155 and 38 C.F.R. § 3.105 based on the clear and unmistakable evidence that there was no improvement in the symptoms of the right ankle disability since the last rating decision. In sum, the Board concludes that July 13, 1981 Board decision is clearly and unmistakably erroneous; therefore, the July 13, 1981 rating decision should be revised, resulting in restoration of the 10 percent rating under 38 C.F.R. § 4.71a, DC 5271 for a right ankle disability, effective January 1, 1980. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel