Citation Nr: 21042369 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-42 817 DATE: July 12, 2021 ORDER The February 1, 2018 Board decision, having been found to be clearly and unmistakably erroneous in awarding a combined disability rating of 60 percent for the period from January 1, 2012 to February 29, 2016, is revised to reflect an award of a combined disability rating of 50 percent for the period from January 1, 2012 to February 29, 2016. FINDINGS OF FACT 1. In a final decision dated February 1, 2018, the Board awarded a combined disability rating of 60 percent for the period from January 1, 2012 to February 29, 2016. 2. The February 1, 2018 Board decision contained legal and factual errors in awarding a combined disability rating of 60 percent for the period from January 1, 2012 to February 29, 2016. 3. But for the legal and factual errors in the February 1, 2018 Board decision, the outcome would have been manifestly different and an award of a combined disability rating of 50 percent for the period from January 1, 2012 to February 29, 2016 would have been granted. CONCLUSION OF LAW The February 1, 2018 Board decision awarding a combined disability rating of 60 percent for the period from January 1, 2012 to February 29, 2016, was clearly and unmistakably erroneous, and is revised to award of a combined disability rating of 50 percent for the period from January 1, 2012 to February 29, 2016. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 20.1400-1411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1966 to August 1972. This matter is currently before the Board on the Board's own September 2018 motion for revision or reversal on the grounds of CUE in the February 1, 2018 Board decision that, in pertinent part, awarded a combined disability rating of 60 percent for the period from January 1, 2012 to February 29, 2016. 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. A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). 38 U.S.C. § 7111(a). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c); 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). 1. In the present case, the Board, on its own motion, alleges CUE in a February 1, 2018, Board decision that awarded a combined disability rating of 60 percent for the period from January 1, 2012 to February 29, 2016. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The pertinent laws and regulations at the time of this decision were the same as they are now. Disability percentages are not added to arrive at the level of disability. Rather, combined ratings are arrived at by using a formula to calculate the degree of disability caused by a service-connected disorder based on the consideration of the efficiency of the individual as a whole, as affected first by his most disabling condition, then by the less disabling conditions in the order of their severity. See 38 C.F.R. § 4.25. The Combined Ratings Table (Table I) located at 38 C.F.R. § 4.25 results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled. To use Table I, the disabilities will first be arranged in the exact order of their severity, beginning with the greatest disability and then combined with use of table I as hereinafter indicated. For example, if there are two disabilities, the degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. If there are more than two disabilities, the disabilities will also be arranged in the exact order of their severity and the combined value for the first two will be found as previously described for two disabilities. The combined value, exactly as found in table I, will be combined with the degree of the third disability (in order of severity). The combined value for the three disabilities will be found in the space where the column and row intersect, and if there are only three disabilities will be converted to the nearest degree divisible by 10, adjusting final 5's upward. 38 C.F.R. § 4.25(a). Except as otherwise provided, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any. All disabilities are then to be combined as described in paragraph (a) of this section. The conversion to the nearest degree divisible by 10 will be done only once per rating decision, will follow the combining of all disabilities, and will be the last procedure in determining the combined degree of disability. 38 C.F.R. § 4.25(b). In addition, when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (the two 10's representing bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 to 74 percent, converted to 70 percent as the final degree of disability. 38 C.F.R. § 4.26. The Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs and is without authority to revise them. 38 C.F.R. § 19.5. Therefore, the Board does not have any authority to calculate the Veteran's overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. §§ 4.25, 4.26. At the time of the February 1, 2018 Board decision, for the period from January 1, 2012 to February 29, 2016, the Veteran was in receipt of service connection for status post right total knee arthroplasty (rated 30 percent disabling, effective January 1, 2012, and 60 percent disabling, effective February 29, 2016); a lumbar spine disability (rated 20 percent disabling, effective September 17, 2009); residuals of medial meniscectomy, left knee (rated 10 percent disabling, effective September 1, 1972); residuals laceration right eyebrow (rated 0 percent disabling, effective September 1, 1972); and a right knee scar (rated 0 percent disabling, effective November 17, 2010). Combining these ratings in according with the provisions of 38 C.F.R. §§ 4.25, 4.26 results in a combined disability rating of 50 percent for the period from January 1, 2012, to February 29, 2016. Specifically, the 30 percent assigned for the right knee disability is combined with the 10 percent assigned for the left knee disability, resulting in 37 percent according to Table I. Then, a bilateral factor of 10 percent of 37 (3.7) is added to the 37, resulting in a combined rating for the bilateral knee disabilities of 40.7, rounded up to 41 for calculation purposes. Then, the 41 percent rating for the bilateral knee disabilities is combined with the 20 percent rating for the lumbar spine disability according to Table I, resulting in a combined disability rating of 53 percent. This 53 percent is then converted to the nearest degree divisible by 10, which is 50 percent. Thus, the Board in the February 1, 2018 decision clearly and unmistakably committed legal error in granting a combined rating of 60 percent for the period from January 1, 2012, to February 29, 2016. Thus, after considering the evidence of record at the time of the February 1, 2018 Board decision, the Board finds clear and unmistakable legal error in the Board's February 1, 2018 decision that granted a combined rating of 60 percent for the period from January 1, 2012, to February 29, 2016, as the statutory and regulatory provisions extant at the time were not applied. Moreover, had the legal error discussed above not been committed, the February 1, 2018 Board decision manifestly would have awarded a combined disability rating of 50 percent, pursuant to the provisions of 38 C.F.R. §§ 4.25, 4.26. In making this decision, the Board notes that the Veteran's representative notified the Board in November 2018 that the Veteran does not contest that the February 2018 Board decision contains CUE, and the RO has not implemented the Board's erroneous grant of benefits. Furthermore, the practical effects of the Board's decision herein have been rendered moot by the Board's February 18, 2021 decision that granted a combined rating of 80 percent from January 1, 212 to February 28, 2016, in consideration of increased ratings for the right and left knee disabilities that were awarded in that decision. Nevertheless, the Board finds that revision of the February 1, 2018 Board decision is necessary to correct the clear and unmistakable error that was made in that decision. In sum, Board decision is clearly and unmistakably erroneous; therefore, the February 1, 2018 Board decision should be revised, resulting in an award of a combined disability rating of 50 percent, pursuant to the provisions of 38 C.F.R. §§ 4.25, 4.26. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1402-1404. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.