Citation Nr: 18160887 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-21 955 DATE: December 28, 2018 ORDER The rating reduction from 20 percent to 10 percent for left transverse distal femur fracture s/p ORIF with rod placement, effective September 19, 2012, based on clear and unmistakable error (CUE) was proper. The discontinuation of the assignment of a separate 10 percent rating for left lower extremity shortening, effective September 19, 2012, based on CUE was proper. REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected left transverse distal femur fracture residuals, is remanded. Entitlement to service connection for a peripheral nerve disorder, to include as secondary to service-connected left transverse distal femur fracture residuals, is remanded. Entitlement to an initial compensable evaluation for left transverse distal femur fracture s/p ORIF with rod placement and limitation of extension of the thigh is remanded. Entitlement to an initial evaluation in excess of 10 percent for left transverse distal femur fracture s/p ORIF with rod placement and left lower extremity shortening is remanded. Entitlement to additional dependency benefits based on school attendance for the Veteran’s son, S. T. is remanded. FINDINGS OF FACT 1. The rating reduction from 20 percent to 10 percent for left transverse distal femur fracture s/p ORIF with rod placement with left lower extremity shortening, effective September 19, 2012, based on CUE, was proper. 2. The discontinuation of the assignment of a separate 10 percent rating for left lower extremity shortening, effective September 19, 2012, based on CUE, was proper. CONCLUSIONS OF LAW 1. The criteria for restoration of the 20 percent evaluation for left transverse distal femur fracture s/p ORIF with rod placement with left lower extremity shortening, effective September 19, 2012, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5253 (2013). 2. The criteria for restoration of the assignment of a separate 10 percent rating for left lower extremity shortening, effective September 19, 2012, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017); 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1988 to April 1995. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions rendered in October 2013, May 2014, April 2015, August 2015, and February 2017 by the Department of Veterans Affairs (VA), Regional Office (RO). The Veteran was afforded a hearing before a Decision Review Officer (DRO) in December 2014. A transcript of that hearing is included in the electronic claims file. 1. Propriety of the reduction from 20 percent to 10 percent for left transverse distal femur fracture s/p ORIF with rod placement, effective September 19, 2012, based on CUE 2. Propriety of discontinuation of the assignment of a separate 10 percent rating for left lower extremity shortening, effective September 19, 2012, based on CUE In September 2012, the Veteran filed a claim for entitlement to service connection for current residuals associated with an in-service left femur fracture. In an October 2013 VA examination report, the Veteran exhibited left thigh extension that ended at greater than 5 degrees. While he did not have abduction lost beyond 10 degrees, he had limitation of abduction such that he could not cross his legs. The Veteran also did not exhibit malunion of the femur but did have leg length discrepancy with shortening of the left lower extremity. In an October 2013 rating decision, the RO granted entitlement to service connection for left transverse distal femur fracture s/p ORIF with rod placement, assigning a 20 percent rating under Diagnostic Codes 5003-5253, effective September 19, 2012. The RO assigned the 20 percent evaluation based on limitation of abduction of the thigh, with motion lost beyond 10 degrees as well as on additional symptoms, including limitation of adduction of the thigh (cannot cross legs), malunion of the femur with slight hip disability, and X-ray evidence of degenerative arthritis. In November 2013, the Veteran filed a timely notice of disagreement, seeking an increased rating for his femur fracture residuals. In an April 2015 DRO decision, the DRO granted entitlement to service connection for left lower extremity shortening associated with left transverse distal femur fracture s/p ORIF with rod placement, assigning a separate 10 percent rating under Diagnostic Code 5275, effective September 19, 2012. It was noted that the Veteran had left lower extremity shortening of 1¼ to less than 2 inches (3.2 cms. to less than 5.1 cms.). In an August 2015 DRO decision, the DRO found CUE in the April 2015 rating decision in granting a separate and compensable 10 percent evaluation for left lower extremity shortening, effective September 19, 2012. It was noted that left lower extremity shortening was part and parcel of the Veteran’s service-connected left hip disability. The DRO indicated that the rating schedule for the Musculoskeletal System (38 C.F.R. § 4.71a, Diagnostic Code 5275, NOTE) indicated that shortening of the lower extremity was not to be combined with other ratings for fracture or faulty union in the same extremity. Assigning an evaluation for the left leg femur fracture and for shortening of the bone of the left lower extremity was found to be clearly erroneous. The DRO also reduced the Veteran’s evaluation for service-connected left transverse distal femur fracture s/p ORIF with rod placement from 20 percent disabling to 10 percent disabling, effective September 19, 2012. The DRO found CUE in the October 2013 rating decision assigning a 20 percent evaluation, as there was no evidence of malunion of the femur or abduction of the thigh lost beyond 10 degrees in the October 2013 VA examination report. Finally, the DRO granted entitlement to service connection for left transverse distal femur fracture s/p ORIF with rod placement, limitation of extension of the thigh, assigning a noncompensable evaluation, effective September 19, 2012. Later that same month, the Veteran filed a notice of disagreement with those determinations, seeking restoration of his 20 percent evaluation under Diagnostic Codes 5003-5253 and the separately assigned 10 percent evaluation under Diagnostic Code 5275. As an initial matter, the Board observes that 38 C.F.R. § 3.105(e) (2017) contains notice provisions and procedures applicable to rating reductions. However, the provisions of 38 C.F.R. § 3.105(e) do not apply here, as the reductions effectuated by the DRO in the August 2015 rating decision did not result in a reduction of the Veteran’s overall compensation payments, despite the fact that his individual ratings for the left femur fracture residuals were reduced. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). In general, a rating reduction occurs when VA determines that a lower disability level for a disorder is warranted, where the former rating had been in effect for a period of time. Usually, such reductions must be based on a finding of “improvement” in the disability, and must comply with the standards in 38 C.F.R. §§ 3.343 and 3.344. VA may not, however, reduce the rating simply because the Veteran does not meet the schedular criteria, unless the underlying disorder has shown improvement, or unless CUE is shown in the determination to assign the disability rating. The DRO reduced the Veteran’s ratings as described in detail above based on CUE. Under 38 C.F.R. § 3.105(a), a prior decision must be reversed or amended where evidence establishes CUE. CUE is determined by three criteria: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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. See Damrel v. Brown, 6 Vet. App. 242 (1994); see Russell v. Principi, 3 Vet. App. 310 (1992); see also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (to prove the existence of CUE as set forth in 38 C.F.R. § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision). 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. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE. The Court has explained that “clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors “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, 3 Vet. App. at 313. The Board finds that based on the facts available to the RO at the time of the October 2013 rating decision and the applicable regulations, it did not correctly apply the pertinent laws and regulations and that this error manifestly changed the outcome of the decision since the Veteran was awarded a 20 percent rating without justification for his service-connected left transverse distal femur fracture s/p ORIF with rod placement under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5253. Findings in the October 2013 VA examination report only showed limitation of abduction such that the Veteran could not cross his legs with shortening of the left lower extremity. The examiner also specifically found that the Veteran did not exhibit limitation of abduction with motion lost beyond 10 degrees or any femur malunion. The award of a 20 percent rating for the Veteran’s left hip/thigh condition constituted a misapplication of the law to the relevant facts. Accordingly, the DRO’s reduction of the Veteran’s rating to 10 percent from 20 percent was proper and the criteria for restoration are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5253 (2013). The Board also finds that based on the facts available to the RO at the time of the April 2015 rating decision and the applicable regulations, it did not correctly apply the pertinent laws and regulations and that this error manifestly changed the outcome of the decision since the Veteran was awarded a separate 10 percent rating without justification for left leg shortening associated with his service-connected left transverse distal femur fracture s/p ORIF with rod placement under 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2015). Under the regulation extant at that time, a rating for shortening of a lower extremity was not to be combined with other ratings for fracture or faulty union in the same extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5275, NOTE (2015). Accordingly, the DRO’s discontinuation of the assignment of a separate 10 percent rating for left lower extremity shortening was proper and the criteria for restoration are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017); 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2015). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected left transverse distal femur fracture residuals, is remanded. 2. Entitlement to service connection for a peripheral nerve disorder, to include as secondary to service-connected left transverse distal femur fracture residuals, is remanded. The Board cannot make a fully-informed decision on these matters, as no VA examiner has opined as to whether the Veteran’s claimed lumbar spine and/or peripheral nerve disorder was aggravated (permanently worsened) beyond the normal course of the condition by his service-connected left transverse distal femur fracture residuals. 3. Entitlement to an initial compensable evaluation for left transverse distal femur fracture s/p ORIF with rod placement and limitation of extension of the thigh is remanded. 4. Entitlement to an initial evaluation in excess of 10 percent for left transverse distal femur fracture s/p ORIF with rod placement and left lower extremity shortening is remanded. While the record contains a contemporaneous VA examination dated in October 2013 regarding the Veteran’s left transverse distal femur fracture residuals, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination did not contain passive range of motion measurements or pain on weight-bearing testing. Evidence of record further reflects that the Veteran received VA medical treatment for his service-connected left transverse distal femur fracture residuals and claimed lumbar spine and peripheral nerve disorders from Pittsburgh VA Medical Center (VAMC). As evidence of record only includes treatment records dated up to April 2015 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 5. Entitlement to additional dependency benefits based on school attendance for the Veteran’s son, S. T. is remanded. Regarding this claim, the Veteran submitted a timely notice of disagreement with a February 2017 rating determination, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from Pittsburgh VAMC for the period from April 2015 to the present. 2. Thereafter, obtain a VA medical opinion to clarify the etiology of the Veteran’s claimed lumbar spine and peripheral nerve disorders by an appropriate examiner. The electronic claims file must be made available to the reviewing examiner, and he or she must specify in the opinion that the file has been reviewed. The reviewing examiner is asked to provide an opinion as to whether it was at least as likely as not (50 percent probability or greater) that the Veteran’s lumbar spine disorder and/or peripheral nerve disorder was aggravated (permanently worsened) beyond the normal course of the condition by his service-connected left transverse distal femur fracture residuals. If the opinion is that the service-connected left transverse distal femur fracture residuals aggravated the Veteran’s lumbar spine disorder and/or peripheral nerve disorder, the examiner should specify, so far as possible, the baseline level of severity of the lumbar spine disorder and/or peripheral nerve disorder prior to aggravation and the degree of disability (pathology/impairment) resulting from such aggravation. In providing the requested medical opinion, the reviewing examiner must acknowledge and discuss the findings in the April 2014 VA examination report, April 2015 VA medical opinion, medical treatise evidence, and the lay assertions of the Veteran. Another examination of the Veteran should only be performed if deemed necessary by the reviewing examiner providing the opinion. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2017). 3. Schedule the Veteran for an examination of the current severity of his left transverse distal femur fracture s/p ORIF with rod placement residuals (including limitation of extension of the thigh, left thigh impairment, and left lower extremity shortening). The examiner must test the Veteran’s left hip/thigh active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left transverse distal femur fracture s/p ORIF with rod placement residuals (including limitation of extension of the thigh, left thigh impairment, and left lower extremity shortening) alone and discuss the effect of the Veteran’s left transverse distal femur fracture s/p ORIF with rod placement residuals (including limitation of extension of the thigh, left thigh impairment, and left lower extremity shortening) on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Send the Veteran and his agent a statement of the case that addresses the issue of entitlement to additional dependency benefits based on school attendance for the Veteran’s son, S. T. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 5. After completing the above actions, and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the May 2015 and July 2015 statements of the case. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his agent. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. (Continued on the next page)   MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. D. Deane, Counsel