Citation Nr: A21003329 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 200301-66137 DATE: February 11, 2021 ORDER Entitlement to revision of a March 2004 rating decision on the basis of clear and unmistakable error (CUE) is granted, and the March 2004 rating decision is revised to reflect the separate grants of service connection for a right ankle disability, evaluated as 10 percent disabling, a right foot disability, and a lumbar spine disability, evaluated as 10 percent disabling. FINDINGS OF FACT 1. A March 2004 rating decision granted service connection for degenerative arthritis of right foot and ankle, and lumbar spine; a single noncompensable evaluation. 2. The Veteran did not file a timely appeal and did not submit new and material evidence within one year of the rating decision; therefore, the March 2004 rating decision is final. 3. The statutory or regulatory provisions in existence at the time of the March 2004 rating decision were incorrectly applied and the failure to correctly apply such provisions manifestly changed the outcome of that rating decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of a March 2004 rating decision on the basis of CUE have been met, and the rating decision is revised to reflect a separate grant of service connection for degenerative joint disease of the right ankle, evaluated as 10 percent disabling. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DCs) 5003, 5010, 5271 (2004). 2. The criteria for entitlement to revision of a March 2004 rating decision on the basis of CUE have been met, and the rating decision is revised to reflect a separate grant of service connection for a right foot disability. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a); 3.310; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5284 (2004). 3. The criteria for entitlement to revision of a March 2004 rating decision on the basis of CUE have been met, and the rating decision is revised to reflect a separate grant of service connection for degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DCs) 5003, 5010, 5292 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the United States Navy from July 1986 to December 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the January 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying revision of a March 2004 rating decision, which combined the evaluation of degenerative disease of right foot and ankle, and lumbar spine into a single disability rating, on the basis of CUE. In March 2020, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), and elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Clear and Unmistakable Error (CUE) Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, where evidence establishes such error, the prior rating decision will be reversed or amended. 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. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error of fact or 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). CUE is a collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In the instant case, the Veteran asserts that the RO committed clear and unmistakable error in a March 2004 rating decision, which combined the evaluation of degenerative disease of right foot and ankle, and lumbar spine into a single disability rating. See VA Form 10182, March 2020. The Veteran believes that the three issues should have been rated individually. See VA Form 20-0995, January 2020. A review of the evidence of record reflects that during military service the Veteran injured his back, right leg, and right ankle. In March 1985, the Veteran was shocked in the right thigh by a hoist cable. See STR-Medical, August 2003 at p.67 of 274. X-rays revealed no fracture; however, the Veteran sustained a massive contusion resulting in significant edema and pain at the mid-shaft of the femur. Id. at p.55, 67 of 274. In June 1988, the Veteran was seen at the emergency room with complaints of having twisted his right ankle during a Volleyball game. Id. at p.84 of 274. Slight swelling was noted with increased pain and limited range of motion. Id. The eversion injury was noted, and the Veteran was diagnosed with a right ankle sprain. Id. at p.83 of 274. In July 1988, the Veteran was seen for a post ER evaluation for the eversion injury of the right ankle. Id. at p.81 of 274. Slight edema and full range of motion were noted. Id. The examiner determined that the ankle sprain was resolved. Id. In October 1991, the Veteran was seen for complaints of low back pain with radiation down the left leg, pain with increased pain with coughing or sneezing, difficulty walking and sitting comfortably, and some dysesthesias of the left leg. Id. at p.91 of 274. A physical therapy consultation report reflects that the Veteran reported having low back pain with radicular symptoms for three months. Id. at p.89 of 274. Range of motion was limited secondary to pain. Id. The Veteran was diagnosed with left sciatica. Id. In December 1991, the Veteran was seen for low back pain with radiation down the left leg with L5 distribution since October 1991. Id. at p.107 of 274. The examiner noted that the pain in the left leg had resolved, but pain in the left buttock and low back pain remained. Id. The examiner noted that results of a magnetic resonance imaging (MRI) scan showed L5-S1 left paracentral herniation of the nucleus pulposus (HNP). Id. A January 1992 flight physical reflects that the Veteran reported having recurrent back pain. Id. at p.179 of 274. The examiner noted that the Veteran was diagnosed with acute sciatica in October 1991 and small HNP at L5-S1, which was currently resolved. Id. at p.180 of 274. In July 2003, the Veteran underwent a routine physical and reported having foot trouble, recurrent back pain and a right leg condition. Id. at p.1 of 274. The noted a right leg deformity following a helicopter accident; back pain since a 1987 helicopter accident; and foot trouble since his last deployment. Id. at p.3 of 274. The examiner noted that the Veteran had several injuries to his back, right thigh muscles injury, prolong stiffness resulting in right leg cramps, and callouses on the right foot. Id. The examiner also noted that the Veteran had chronic occasional back pain and right leg pain since a helicopter accident. Id. at p.8 of 274. In August 2003, the Veteran submitted an application for compensation, in part, for right leg, back, and right foot and ankle conditions. See VA 21-526, August 2003. In November 2003, the Veteran was afforded a pre-discharge VA medical examination. The Veteran reported being in two significant accidents, one in 1984 resulting in a leg injury; and in 1987, resulting in a back injury. See VA Examination, November 2003. The Veteran reported that a large cable hit his right leg in 1984 causing severe swelling and subsequent problems with his right foot. The examiner noted that the Veteran sustained a right ankle and foot injury while being treated for pain in his right thigh. The Veteran reported having occasional right ankle aching, with no weakness, instability or edema. The examiner noted that the initial back injury occurred in 1987 with reinjury in 1991, and recurrent symptoms in 2001. The examiner noted that inservice MRI reports were not available in the Veteran’s C-file, but that the Veteran reported being told that he had disc disease. Physical examination of the back revealed no external injury. The Veteran was noted to have full range of motion with flexion of 95 degrees, extension of 30 degrees, and lateral flexion of 35 degrees in both directions. Pain was noted at full flexion and left lateral flexion. Physical examination of the right ankle showed no significant abnormalities. The examiner noted full range of motion with extension 20 degrees, flexion of 45 degrees, pronation of 15 degrees, and supination of 35 degrees. Examination of the right lower extremity revealed muscle wasting in the quadriceps area with a deformity of the muscle group. X-rays of the lumbar spine and right ankle were normal. The Veteran’s diagnoses, in part, were noted as degenerative disk disease of the lumbar spine, post-traumatic muscle wasting of the right quadriceps, and degenerative joint disease of the right ankle. In a March 2004 rating decision, the RO granted service connection for degenerative disease of right foot, right ankle, and lumbar spine; a single noncompensable (zero percent) evaluation under was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. The RO noted that a noncompensable evaluation was assigned because there was no discernable limitation of motion which would be a requirement for a compensable evaluation. There was no explanation as to why the conditions were combined into a single disability. Reviewing the March 2004 rating decision, it would appear that the RO determined that the Veteran’s degenerative disease of the right ankle and lumbar spine as manifested by the same symptomatology, and that the right ankle affected the right foot. See 38 C.F.R. § 4.14 (2004) (providing that evaluation of the same disability under various diagnoses is to be avoided). However, the Board finds that this determination was incorrect as the evidence of record reflects that the Veteran’s lumbar spine condition was manifested by left leg radicular pain. Further, the Veteran’s right foot condition was determined to be associated with the Veteran’s right leg injury, and the Veteran’s right ankle injury was incurred three years after his right leg injury. Therefore, the three service-connected conditions were separate and distinct disabilities and should not have been combined and evaluated as one disability. At the time of the March 2004 rating decision, 38 C.F.R. § 4.71a, DC 5010, provided that arthritis due to trauma substantiated by X-ray findings be rated as degenerative arthritis. In this regard, 38 C.F.R. § 4.71a, DC 5003, provided that degenerative arthritis established by X-ray findings was be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2003). Pertaining to the ankle, a minimum 10 percent rating is warranted where limitation of motion is moderate. 38 C.F.R. § 4.71a, DC 5271 (2003). As noted above, when examined in November 2003, the Veteran was noted to have full range of motion. Where, as here, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a, DC 5003; see 38 C.F.R. § 4.45 (providing that for the purpose of rating disability from arthritis, the shoulder, elbow, wrist, knee, hip, and ankle are considered major joints). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Id. In regard to the Veteran’s right ankle, although the Veteran’s degenerative joint disease (DJD) of the right ankle was not manifested by limitation of motion, it was manifested by occasional pain. See VA Examination, November 2003. In this regard, the Board points out that 38 C.F.R. § 4.59 provided in pertinent part: “The intent of the [rating] schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59 (2004). As such, the Board finds that the Veteran’s DJD of the right ankle should have been evaluated separately and assigned a compensable rating as provided by 38 C.F.R. § 4.71a, DC 5003 and 38 C.F.R. § 4.59. See 38 C.F.R. §§ 4.59, 4.71a, DC 5003. Although the correct facts, as they were known at the time, were before the RO in March 2004, the Board finds that the statutory or regulatory provisions then extant were not correctly applied. Further, had the RO correctly applied those regulations, it is undebatable in March 2004 that a separate, 10 percent disability rating for DJD of the right ankle was warranted. Consequently, March 2004 rating decision is revised to reflect a separate grant of service connection for DJD of the right ankle, evaluated as 10 percent disabling. Regarding the Veteran’s right foot disability, although the Veteran’s claim combined the right ankle and foot, it was determined by the November 2003 VA examiner that his right foot condition was proximately due to his right leg injury. Moreover, at the time of the November 2003 examination and the March 2004 rating decision, there was no x-ray findings that the Veteran had degenerative disease of the right foot. As such, the Board finds that the right foot should have been at least evaluated separately under the Diagnostic Code 5284, for other foot injuries, to include as secondary to post-traumatic wasting of right quadriceps, which disability was diagnosed at the time of the November 2003 examination. See 38 C.F.R. § 4.71a, DC 5284, 5313 (2004). Although the correct facts, as they were known at the time, were before the RO in March 2004, the Board finds that the statutory or regulatory provisions then extant were not correctly applied. Had the RO correctly applied such statutory or regulatory provision, the March 2004 rating decision would have awarded service connection for a right foot disability, secondary to the Veteran’s service-connected posttraumatic wasting of the right quadriceps. Consequently, March 2004 rating decision is revised to reflect a separate grant of service connection for a right foot disability. With regard to the Veteran’s degenerative disk disease (DDD) of the lumbar spine, the Board notes that the regulations pertaining to the evaluation of disabilities of the spine were amended during the pendency of the Veteran’s original claim, which claim was filed in August 2003. Effective September 26, 2003, the spine DCs were renumbered and the rating schedule was revised to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine. 68 Fed. Reg. 51454-51456 (Aug. 27, 2003) (effective September 26, 2003). Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent expressed intent to the contrary. Prior to the regulatory changes, a10 percent rating was warranted under DC 5295 for lumbosacral strain with characteristic pain on motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Additionally, a 10 percent rating was warranted for slight limitation of motion of the lumbosacral spine under DC 5292. 38 C.F.R. § 4.71a, DC 5292 (2002). Again, the Board points that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Notably, the report of the November 2003 examination reflected that the Veteran’s lumbar spine disability was manifested by painful motion at full flexion and left lateral flexion. Given the clear evidence of observed painful motion, the Board finds a 10 percent rating was warranted for the Veteran’s lumbar spine disability under DC 5292 with consideration of 38 C.F.R. § 4.59. As such, the Board finds revision of March 2044 rating decision on the basis of CUE is warranted. This is so because had the RO correctly applied the regulatory provisions in existence at the time of that decision,, it is undebatable that a separate 10 percent rating for the Veteran’s lumbar spine disability was warranted. Consequently, the March 2004 rating decision is revised to reflect a grant of separate grant of service connection for degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.