Citation Nr: 21062878 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-49 385 DATE: October 12, 2021 ORDER The claim alleging a clear and unmistakable error (CUE) in rating decisions dated December 1978 and October 1984 is denied. FINDING OF FACT In evaluating of the Veteran's right knee disability, the rating decisions dated December 1978 and October 1984 did not make any clear and unmistakable error (CUE), absent of which would have manifestly changed the outcome of the claim. CONCLUSION OF LAW The criteria for establishing CUE in the December 1978 and October 1984 rating decisions have not been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1972 to May 1974. An October 2020 Board decision, in part, denied the claim alleging a CUE in the December 1978 and October 1984 rating decisions. The Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In May 2021, the Court vacated the October 2020 Board decision on the CUE issue without disturbing other issues in the Board decision, and remanded the CUE issue pursuant to a Joint Motion for Partial Remand (JMR). In the JMR, parties agreed that the Board did not adequately address that (1) the Veteran filed an "right leg condition" claim in 1974, it was denied in August 1974, and he did not disagree with the decision; (2) On October 2, 1978, VA received a new claim for a "cracked keen cap" in which the Veteran did not mention which knee he was claiming, but on October 13, 1978, VA ordered an examination for the "Rt. knee" condition. In that same month, VA examination was conducted and the examiner diagnosed him with right knee arthritis and atrophy of the right quadriceps; (3) In a December 1978 rating decision, VA reopened the claim for service connection for right knee condition based on the evidence, to include the October 1978 VA examination, and granted service connection for right knee arthritis at 10 percent rating effective October 2, 1978. CUE A December 1978 rating decision granted service connection for a right knee condition with an initial rate of 10 percent. An October 1984 rating decision assigned increased ratings for the Veteran's right knee disability during different stages. Both rating decisions have become final, as such they can only be revised upon a finding of CUE. The Veteran filed a CUE claim which was received by VA in November 2016, alleging a clear and unmistakable error was made in the December 1978 and October 1984 rating decisions in that they both failed to assign a separate rating for right quadriceps atrophy, in addition to the rating assigned for the service connected right knee condition. At his Board hearing in January 2020, the Veteran testified that his right leg was smaller than the left leg, and his representative argued that, since the medical records had documented Veteran's right quadriceps atrophy at the time of the December 1978 and October 1984 rating decisions, a service connection claim for the right quadriceps should had been inferred by the records, and the Agency of Original Jurisdiction (AOJ) should have assigned a separate rating for right quadriceps atrophy when adjudicating the right knee claim. The representative contended that failure to assign a separate rating constituted a CUE. A clear and unmistakable error 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. Where evidence establishes such error, the prior rating decision will be reversed or amended. 38 C.F.R. § 3.105 (a). A determination of CUE is a three-pronged test: (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 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. Russell v. Principi, 3 Vet. App. 310 (1992). In Perciavalle v. Wilkie, the Court held that Esteban cannot be deemed a change in interpretation of the regulation pertaining to impermissible pyramiding, 38 C.F.R. § 4.14. 32 Vet. App. 59, 66 (2019). As such, Esteban's holding that separate ratings are permissible for different diagnoses of the same disability as long as the conditions diagnosed shared no symptomology has retroactive effect on the RO's 1978 and 1984 rating decisions. The question then becomes whether the issue was so clear that the Board should find CUE in the failure to assign separate compensable ratings. The Board will now analyze the evidence of record. The Veteran initially filed a service connection claim for a "right leg condition" which was received by VA in June 1974. In this claim, he referenced and enclosed Medical Board Report dated April 1974 (while he was in the service) showing that he was diagnosed with right patellofemoral arthritis, secondary to previous patellar non-union. A rating decision in August 1978 denied the service connection claim. The Veteran did not appeal the decision. The Veteran filed a service connection claim again for "cracked knee cap" which was received by VA on October 2, 1978. AOJ requested a VA examination for right knee in October 1978, which was subsequently conducted in October 1978. The examiner diagnosed the Veteran with post-traumatic right knee patellofemoral arthritis with severe atrophy of the disuse of the right quadriceps femoris muscle. A December 1978 rating decision reopened the previously denied service connection claim for right leg/right knee, and granted service connection for a right knee arthritis with an initial rate of 10 percent. This rating decision noted that atrophy of the right quadriceps was revealed by the October 1978 VA examination. The Veteran did not appeal to this decision. In December 1983, the Veteran filed an increased rating claim for his right knee. An October 1984 rating decision assigned increased ratings for right knee during different stages. The Veteran did not appeal to this decision. The Board finds that prior to the October 1984 rating decision, the Veteran had not conveyed a formal or informal communication in writing to VA which could undoubtfully be construed as requesting a separate rating for his right quadriceps atrophy apart from his right knee disability rating. Before the VA's new regulations (published on 79 Fed. Reg. 57,660) took effect on March 24, 2015, a "claim" could be broadly interpreted to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). However, the Court has held that VA was not required to "conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32 (1998). Moreover, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Here, the Veteran initially filed service connection claim for "right leg condition" in June 1974 and he referenced his specific right leg condition to the Medical Board Report showing that he was diagnosed with right patellofemoral arthritis. Reading the Veteran's claim and the Medical Board Report, it is clear that the Veteran intended to file a service connection claim for his right knee. There was no mention of any atrophy in the medical records at that time. Atrophy was first mentioned at the November 1978 VA examination. In October 1978, the Veteran filed service connection claim again for his "cracked knee cap". While he did not indicate which knee he was claiming, it is logical for AOJ to interpret this claim as the claim for the right knee, given that the Veteran had previously filed a claim for his right knee and the Medical Board Report previously received by VA indicated that he had right knee arthritis secondary to pervious patellar non-union. Moreover, to the extent that the representative is arguing that VA didn't know which knee was being claimed, the claim was clearly for a knee disability and not a separate muscle injury or atrophy. While the VA examination diagnosed the Veteran with post-traumatic right knee patellofemoral arthritis with severe atrophy of the disuse of the right quadriceps femoris muscle, as discussed before, the mere presence of medical evidence showing a disability does not establish an informal claim for service connection for that disability. As such, the AOJ did not err in its December 1978 rating decision and October 1984 rating decision by not to consider right quadriceps as a separate claim and assign a separate rating for it, because no informal or formal claim for right quadriceps has been communicated to the VA by the Veteran. Even assuming that the right quadriceps clam should be considered as an informal inferred claim, failure to consider it as a separate claim does not constitute a CUE because considering it has a separate claim does not necessarily result in a separate rating for the right quadriceps, as demonstrated by the July 2018 rating decision which granted service connection for right quadriceps, but denied a separate rating for it. (See discussion below). Furthermore, the Board finds that there is no CUE in the December 1978 rating decision and October 1984 rating decision by not granting a separate rating for right quadriceps. As discussed above, a CUE is not just an error, it must be a clear and unmistakable error over which reasonable minds could not differ. Here, the Veteran filed a CUE claim which was received by VA in November 2016, making it clear that he was seeking a separate rating for his right quadriceps in addition to his right knee rating. A rating decision in July 2018 granted service connection for the right quadriceps and calf atrophy, however, the AOJ did not assign a separate rating for the right quadriceps but considered it as part of the evaluation of the right knee disability. The AOJ reasoned that VA regulations do not allow for separate evaluations of conditions affecting the same function of a body area, and in this case, both Veteran's quadriceps and calf conditions affect his right knee conditions. (Of note, the issue of whether a separate rating should be assigned for the right quadriceps is an issue on another appeal stream and will be addressed by a future Board decision.) However, what can be gleaned from that determination is that reasonable minds could differ on the question of whether a separate compensable rating is warranted. That is, even when posed with the specific question years later, the AOJ concluded that a separate compensable rating was not warranted for the atrophy as the muscles involved concerned the functioning of the knee. This determination was affirmed by a statement of the case, meaning that multiple raters looked at the question but found that a separate compensable rating was not warranted. As such, it is clear that even had the RO considered a separate rating in either 1978 or 1984 it was not something that would have been universally agreed upon. The VA regulations prohibit assigning a separate rating for a disability with symptomatology that is duplicative or overlapping with the symptomatology of any other disability (which is called "pyramiding"). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14. As noted, Perciavalle allowed for the possibility of Estaban applying retroactively, but the facts of the case would still need to align, and here they clearly do not. Here, whether to assign a separate rating to the Veteran's quadriceps required the AOJ to weight and evaluate the evidence in order to make a determination under 38 C.F.R. § 4.14. This was done, as atrophy of muscles was discussed in the 1978 rating decision. However, it was not clear that a separate compensable rating should have been awarded, as even today, a separate compensable rating has not been assigned despite several levels of review. When there is clear disagreement as to whether a rating should be assigned, a finding of CUE is not warranted. Accordingly, the Board finds that there is no clear and unmistakable error in the December 1978 and October 1984 rating decisions for not to address right quadriceps as a separate claim and not to assign a separate rating for it. The CUE claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, Associate Counsel 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.