Citation Nr: 20008218 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-22 767 DATE: January 30, 2020 ORDER The claim to revise on the basis of clear and unmistakable error (CUE) the September 1989 rating decision that assigned a 10 percent rating for the gunshot wound to the right thigh (muscle group XV) and failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability is denied. The claim to revise on the basis of CUE the March 2006 rating decision that continued a 10 percent rating for the gunshot wound to the right thigh (muscle group XV) and failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability is denied. The claim to revise on the basis of CUE the November 2014 rating decision that found failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability is denied. The claim to revise on the basis of CUE the April 2015 rating decision that found failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability is denied. REMANDED Entitlement to service connection for gunshot wound residuals other than those involving the right thigh (muscle group XV), to include a gunshot wound to the buttocks (muscle group VXII) and back disorder, is remanded. Entitlement to a rating in excess of 10 percent for gunshot wound residuals of the right thigh (muscle group XV) is remanded. FINDINGS OF FACT 1. The September 1989 rating decision that assigned a 10 percent rating for the gunshot wound to the right thigh (muscle group XV) and failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability became final because the Veteran did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The correct facts, as known at the time, were before the VA adjudicators in September 1989 and the statutory and regulatory provisions extant at the time were correctly applied. 3. In a March 2006 rating decision, the RO continued a 10 percent rating for the gunshot wound right thigh muscle group XV and failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability; the Veteran appealed the March 2006 rating decision to the Board; and the Board denied the appeal in a September 2009 decision. 4. The Veteran submitted a timely Notice of Disagreement and perfected an appeal with the November 2014 and April 2015 rating decisions that found not CUE the evaluation of his gunshot wound residuals. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of the September 1989 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The RO’s March 2006 rating decision that denied service connection for a back condition was subsumed by the September 2009 Board decision. 38 U.S.C. §§ 1110, 5109A, 7104, 7105; 38 C.F.R. § 3.104, 3.105(a), 20.1104, 20.1404. 3. The criteria for entitlement to revision of the November 2014 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 4. The criteria for entitlement to revision of the April 2015 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to March 1969, to include combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in July 2019. 1. CUE in the September 1989 rating decision The Veteran asserts that there is CUE in the September 1989 rating decision that assigned a 10 percent rating for the gunshot wound to the right thigh muscle group XV. He contends that the RO should have granted a rating in excess of 10 percent for muscle group XV and assigned separate ratings for other gunshot wound residuals, to include a separate rating for muscle group XVII. The Veteran explains that since in-service hospitalization records were not of record until November 2009, the September 1989 rating decision and VA medical examination did not consider critical information necessary to evaluating his gunshot wound residuals. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, a September 1989 rating action granted service connection for gunshot wound right thigh muscle group XV and assigned an initial 10 percent rating, and the Veteran did not file a timely Notice of Disagreement challenging this determination, nor did he submit new evidence and material evidence within one year of its promulgation. Thus, the September 1989 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. 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. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. As to the Veteran’s assertion that the September 1989 rating decision did not contemplate his in-service hospitalization records, it is undisputed that such evidence was not of record at the time of the decision. Critically, however, a determination that there was CUE must be based on the record and the law that existed at the time of the rating decision being challenged. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Therefore, evidence that was not of record at the time of the September 1989 rating decision cannot be the basis for finding that the RO committed CUE. Porter v. Brown, 5 Vet. App. 233, 236 (1993). To the extent that the Veteran’ contends that the September 1989 adjudicators erred in failing to obtain his in-service hospitalization records, failing to obtain adequate medical opinions, or otherwise failing to discharge its duty to assist, a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). As noted by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Cook, the requirements that a clear and unmistakable error be both outcome determinative and based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim. Cook, 318 F.3d at 1346. Consequently, the Board finds that the September 1989 rating decision was not clearly and unmistakably erroneous and no revision is warranted. 2. CUE in the March 2006 rating decision In June 2006, the Veteran filed a timely Notice of Disagreement challenging the March 2006 RO determination that continued a 10 percent rating for the gunshot wound right thigh muscle group XV and failed to grant service connection for a gunshot wound to the buttocks, a gunshot wound to the tail bone, and a lumbar spine disability. In a September 2009 decision, the Board denied a rating in excess of 10 percent for gunshot wound residuals of the right thigh involving muscle group XV and did not evaluate any additional gunshot wound residuals. When a Veteran timely appeals an RO determination to the Board and the Board affirms the determination, the rating decision at issue is subsumed by the Board decision on that issue. 38 C.F.R. § 20.1104. A rating decision that is subsumed by a Board decision is not subject to revision or reversal on the basis of CUE. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000)). To reverse a rating decision that has been subsumed by a Board decision, the Veteran must collaterally attack the Board decision. Id. Here, to date, the Veteran has not submitted a motion seeking revision of the September 2009 Board decision on the basis of CUE. 38 C.F.R. § 20.1404. Thus, to the extent the Veteran seeks revision of the June 2006 rating decision on the basis of CUE, the Board finds that his appeal must be denied. 3. CUE in the November 2014 and April 2015 rating decisions The Veteran’s alleges CUE in the November 2014 and April 2015 rating decisions that found not CUE the evaluation of his gunshot wound residuals. In June 2015, the Veteran submitted a timely Notice of Disagreement with the November 2014 and April 2015 rating decisions. Thereafter, the Veteran perfected his appeal on these issues and they were certified to Board. As such, the November 2014 and April 2015 rating decisions are not final, and thus, not subject to revision on the basis of CUE. 38 C.F.R. §§ 3.104, 3.105. REASONS FOR REMAND Entitlement to service connection for gunshot wounds other than those involving muscle group VX, to include muscle group VXII and back disorder, is remanded. Entitlement to a rating in excess of 10 percent for gunshot wound residuals of the right thigh (muscle group XV) is remanded. The procedural history of this matter is relevant to the issues before the Board. The Veteran originally sought service connection for gunshot wound residuals of the thigh and buttocks by way of an application for benefits received by VA on July 13, 1989. In a September 1989 rating decision, the RO granted service connection for gunshot wound of the right thigh (muscle group XV) and assigned an initial 10 percent rating. The RO also denied service connection for a gunshot wound of the buttocks, in part because it determined that there was no evidence of a gunshot wound of the buttocks. In a May 2012 rating decision, the RO denied the Veteran’s December 2005, a claim for an increased rating. The Veteran appealed the RO’s decision to the Board, which, in a September 2009 decision rating in excess of 10 percent for GSW residuals of the right thigh involving muscle group XV. The Board’s decision was based, in part, on the fact that the record was absent objective evidence of a through and though muscle injury or debridement. See Board decision, 8 (September 2009). On November 25, 2009, the Veteran submitted additional service records, including hospitalization records that appear to document a through and through muscle injury and debridement. See STR (July 3, 1968). The Veteran also submitted a letter wherein he asserted that new records show that the RO should have granted a higher rating for his service-connected gunshot wound residuals of the right thigh (muscle group XV) and that service connection should have been granted for gunshot wound residuals other than those involving muscle group VX, to include muscle group VXII and back disorder. On September 11, 2014, the Veteran’s representative alleged CUE in prior rating decisions that failed to assign separate, higher ratings for the aforementioned gunshot wounds. In a November 2014 rating decision, the RO denied the Veteran’s CUE motion. In an April 2015 rating decision, the RO continued its denial of the Veteran’s CUE motion but granted service connection for a scar associated with a gunshot wound to buttocks, effective September11, 2014. The Veteran appealed the RO’s denial of CUE in prior decisions. As discussed above, the Veteran’s claims for revision on the basis of CUE are not warranted. However, pursuant to 38 C.F.R. § 3.156(c), if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA is required to reconsider the claim de novo. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2017); 38 C.F.R. § 3.156 (c). This means that VA had a duty to reconsider the Veteran's claim of service connection for gunshot wounds of the thigh and buttocks on the merits. George, 29 Vet. App. at 205 (holding that VA had a duty to reconsider the appellant's 1997 claim for service connection for PTSD, even though service connection for PTSD was granted in 2007 with an effective date of 2003). The purpose of this exception is to put the Veteran in the same position he would have been in had VA considered the records in the first place. Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). An award made based at least in part on the newly received service records "is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later . . . . 38 C.F.R. § 3.156 (c)(3). Here, since the RO’s initial September 1989 rating decision, the Veteran has been in receipt of a 10 percent rating for the service-connected gunshot wound of the right thigh (muscle group XV), in part, due to the absence of objective evidence of a through and through injury or debridement. See, e.g., Board decision, 8 (September 2009). The RO has also denied service connection for gunshot wounds other than those involving muscle group VX and a buttock scar, to include muscle group VXII and back disorder, in part, due to lack of evidence of injury. The new records received in 2011 relate to the nature and severity of the Veteran’s gunshot wounds: they document hospital treatment and recovery, specifically noting a through and through injury and debridement. As these new, official service department records are relevant and existed and had not been associated with the claims file, VA is required to reconsider the claim de novo. However, to date, the RO has yet to consider these records de novo. Instead, the RO has only considered the records in the context of revision on the basis of CUE. In light of the foregoing, the Board will consider the Veteran’s claims de novo. At this time, however, the evidence of record is insufficient to render a fully informed decision on the Veteran’s claims. Specifically, VA examination is needed to address whether the Veteran’s gunshot injury resulted in a through and through muscle injury with debridement in the Veteran’s thigh (muscle group XV) or buttock (muscle group XVII) or a back disorder. In addressing this issue, the examiner is to evaluate the July 1968, hospitalization records (which have yet to be reviewed by a VA clinician) that indicate a through and through injury and debridement of an unidentified muscle, as well as the post-service medical evidence, to include Dr. Forte’s opinion (June 6, 2019) that MRI appears to show a through and through injury in the buttock and Dr. Conklin’s opinion (June 3, 2019) that the Veteran’s in-service gunshot injury resulted in right buttock thigh wounds as well as the Veteran’s current leg pain. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and current severity of the Veteran’s service-connected gunshot wound of the right thigh (muscle group XV) as well as any other gunshot wounds, to include injury to the buttock (muscle group VXII) and a back disorder. The examiner is to identify all current disorders associated with the Veteran’s in-service gunshot wound, to include any involving the buttock (muscle group VXII) and any back disorder. The examiner is to address Dr. Forte’s opinion (June 6, 2019) that MRI appears to show that a through and through injury in the buttock and Dr. Conklin’s opinion (June 3, 2019) that the Veteran’s in-service gunshot injury resulted in right buttock and thigh wounds and the Veteran’s current leg pain. As to each current gunshot wound, the examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is to expressly address whether any gunshot wound involves debridement and/or a through and through injury. In so doing, the examiner is to address the July 3, 1968, in-service hospital record that appears to indicate a through and through injury and debridement. In addressing the current severity of each current disorder, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.