Citation Nr: 22012633 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 18-42 616A DATE: March 4, 2022 ORDER A clear and unmistakable error (CUE) did not occur in the rating decision dated April 2018 which assigned an overall combined evaluation of 80 percent, effective September 21, 2016, and July 7, 2017. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a left wrist disability is remanded. FINDING OF FACT The Regional Office's (RO) assignment of a combined rating of 80 percent, effective September 21, 2016, and July 7, 2017, in its April 2018 rating decision was supported by the law and the evidence of record and does not include CUE. CONCLUSION OF LAW The RO's April 2018 rating decision, which assigned an overall combined evaluation of 80 percent, does not contain CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105, 38 C.F.R. § 3.303(b), 38 C.F.R. § 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to October 1990, from December 1992 to April 1993 and from April 2004 to September 2004 with additional service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran presented testimony at a virtual hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. As noted at the May 2021 hearing, the record was held open for an additional 90 days in order to afford the Veteran the opportunity to submit additional evidence. To date, no additional evidence had been submitted. CUE 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, an April 2018 rating action assigned a combined evaluation of 80 percent, effective September 21, 2016, and a combined 80 percent evaluation, effective July 7, 2017. The Veteran did not file a timely Notice of Disagreement challenging this determination, nor did she submit new evidence and material evidence within one year of its promulgation. Thus, the April 2018 rating decisions 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 a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of her claim. Analysis The Veteran contends that, although her combined disability rating for compensation is 80 percent, VA miscalculated this rating. The Veteran notes that the April 2018 rating decision should have combined the initial combined 40 percent rating for left ankle, left hip, left knee and right hip disabilities that were granted in the January 2018 rating decision with the recently granted initial 70 percent disability rating for posttraumatic stress disorder (PTSD) which was granted in the April 2018 rating decision. Specifically, the Veteran argues that the combined 40 percent rating was not calculated properly with the initial 70 percent rating for PTSD and the combined rating should be greater than 80 percent. However, after review of the record, the Board finds that there is no CUE in the April 2018 rating decision as the Veteran's 80 percent total disability rating was properly calculated. The Board observes that the calculation of a combined rating under 38 C.F.R. §§ 4.25 and 4.26 is purely a matter of mathematical computation and leaves no room for discretion by VA adjudicators. In other words, once disability ratings are calculated for each service-connected disability, the determination of the overall combined disability rating is arrived at by operation of law. The Board also notes that VA's Combined Ratings Table is found at 38 C.F.R. § 4.25. It provides that the distinct disability ratings applied for each service-connected disability are not added but are combined using the procedure set forth in 38 C.F.R. § 4.25, with consideration given to what is called the "Bilateral Factor" at 38 C.F.R. § 4.26. See 38 C.F.R. §§ 4.25, 4.26 (2020) (emphasis added). In this case, the Veteran's service-connected disabilities combined, even with consideration of the bilateral factor, to no more than 80 percent disabling effective September 21, 2016, and July 7, 2017. Under 38 C.F.R. § 4.26, when a partial disability results from a disease or injury of both arms or legs, the ratings for the disabilities of the right and left sides will be combined as usual under 38 C.F.R. § 4.25, and 10 percent of this value will be added (i.e. not combined) before proceeding with further combinations, or converting to degree of disability. Notably, the Veteran has a left hip disability at a 10 percent disability under Diagnostic Code 5253, effective September 21, 2016; a right hip disability at a 10 percent rating under Diagnostic Code 5253, effective September 21, 2016; a left ankle disability rated as 10 percent disabling under Diagnostic Code 5271, effective September 21, 2016; and a left knee disability rated as 10 percent disabling under Diagnostic Code 5260, effective July 7, 2017. The Veteran also has a 70 percent disability rating under Diagnostic Code 9411 for PTSD. The Veteran's combined disability rating is 80 percent, effective September 21, 2016. The record indicates that the April 2018 rating decision awarded a bilateral factor of 2.7 percent effective September 21, 2016, based on the right and left hip disabilities and a right ankle disability. For the period since July 7, 2017, the bilateral factor was then increased to 3.4 percent effective July 7, 2017, based on the additional left knee disability. After review of the record, the Board finds the bilateral factor was properly determined. Effective September 21, 2016, the Veteran is rated at 10 percent each for right and left hip disabilities and a right ankle disability, which corresponds to a 27 percent rating under 38 C.F.R. § 4.25 Table 1. Ten percent of 27 percent is 2.7, which is the bilateral factor of record for the period since September 21, 2016. Effective July 7, 2017, the Veteran is rated at 10 percent each for right and left hip disabilities, a right ankle disability and a left knee disability, which corresponds to a 34 percent rating under 38 C.F.R. § 4.25 Table 1. Ten percent of 34 percent is 3.4, which is the bilateral factor of record. This combined to be evaluated at 37 percent disabling. Specifically, as outlined by the RO in its April 2018 rating decision, the Veteran's left hip (10 percent under Diagnostic Code 5253), right hip (10 percent under Diagnostic Code 5253), left knee (10 percent under Diagnostic Code 5260) and left ankle (10 percent under Diagnostic Code 5271), were all properly included in the Veteran's bilateral factor calculation. As noted above, combining these separate four 10 percent ratings under 38 C.F.R. § 4.25, when also incorporating the bilateral factor under § 4.26, results in a combined rating of 37 percent. When rounded up, this would result in a combined 40 percent rating. See 38 C.F.R. § 4.25(a). Notably, the correct procedure when applying the bilateral factor to disabilities affecting both the upper and lower extremities is to combine the ratings of the disability affecting the four extremities in the order of their individual severity and apply the bilateral factor by adding, not combining, 10 percent of the combined value thus attained. The combined 40 percent rating and the additional non-bilateral disorder of PTSD rated at 70 percent disabling, and numerous other noncompensable disorders combined as required, result in a total rating of 80 percent. The Board again observes that the calculation of a combined rating under 38 C.F.R. §§ 4.25 and 4.26 is purely a matter of mathematical computation and leaves no room for discretion by VA adjudicators as the determination of the overall combined disability rating is arrived at by operation of law. As a result, because the Veteran's combined disability rating of 80 percent effective September 21, 2016, and July 7, 2017, is correct, the Board finds that there is no CUE in the April 2018 rating decision and the claim for CUE is denied. REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. Regarding the Veteran's claim for service connection for a lumbar spine disability, the Board notes that the Veteran contends that she has a lumbar spine disability that is due to her service to include as secondary to her service-connected bilateral hip disability. The Veteran underwent VA examination in June 2018. The examiner opined that it was less likely than not that the Veteran's claimed lumbar spine disability was related to her bilateral hip disability. However, the examiner did not address whether the Veteran's service-connected bilateral hip disability has aggravated her lumbar spine disability. As such the Board finds that the evidence currently of record is insufficient to resolve the lumbar spine disability claim and that further medical clarification in connection with this claim is warranted to determine whether the Veteran's current lumbar spine disability was caused or aggravated by a service-connected disability. Accordingly, the Board finds that she should be scheduled for a VA examination and opinions to determine whether the Veteran has current lumbar spine disability that is related to service to include as being caused or aggravated by a service-connected disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claim for a right ankle disability, the Veteran contends that she has a current right ankle disability that is secondary to her service-connected left ankle disability. Notably, the Veteran underwent a VA examination for her right ankle disability in January 2018. The examiner opined that it was less likely than not that the Veteran's claimed right ankle disability was related to her left ankle disability as there was no objective findings to support a right ankle diagnosis at this time. However, the record demonstrates that the Veteran consistently reported right ankle pain including reports of pain at her May 2021 hearing. Notably, the current disability definition for VA compensation purposes is broad and includes functional impairment due to pain. Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). Here, the noted right ankle pain is considered a current disability if manifested by functional impairment. As a result, the Board finds that further development is warranted so an examiner can provide an opinion as to whether any current right ankle disability was related to service to include being caused or aggravated (made permanently worse) by a service-connected disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claim for a bilateral foot disability, the Veteran contends that she has a current bilateral foot disability that is secondary to her claimed right ankle disability. As a result, further development and adjudication of the Veteran's service connection claim for a right ankle disability may provide evidence in support of her claim for a bilateral foot disability. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. As such, Board adjudication of the service connection for a bilateral foot disability at this time would be premature. Additionally, the Board notes that the Veteran has yet to undergo a VA examination for her claimed bilateral foot disability. Notably, at her May 2021 hearing, the Veteran testified that her bilateral foot disability was also secondary to her service-connected bilateral hip disability. As a result, the Board finds that further development is warranted so an examiner can provide an opinion as to whether any current bilateral foot disability was related to service to include being caused or aggravated (made permanently worse) by a service-connected disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claim for entitlement to service connection for a left wrist disability, the Board again notes the Veteran's multiple periods of service. Currently, the record does not contain complete service treatment records from all of the Veteran's periods of service. Notably, despite correspondences noting that attempts were being made to obtain the Veteran's complete service treatment records, a memorandum on a formal finding of unavailability has not been associated with the claims file. As a result, in the Board's present review, the file does not contain her complete service treatment records. VA's duty to assist requires it to make as many requests as necessary to secure relevant Federal records, to include service treatment records. VA may halt efforts to secure such records only if VA concludes that the records do not exist or that further efforts to secure the records would be futile. Thus, on remand, additional efforts should be taken to obtain the Veteran's complete service treatment records and associate them with the claims file. 58 U.S.C. §5103A(b); 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Request the Veteran's complete service treatment records from any appropriate source and associate them with the claims file. As set forth in 38 U.S.C.§ 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the AOJ must continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action taken. All efforts to obtain these records should be memorialized in the Veteran's VA claims file. After considering the Veteran's statements, and other lay statement of record, determine whether any service treatment or personnel records remain outstanding but are unavailable. If so, a formal finding of unavailability should be associated with the Veteran's claims file and notice sent to the Veteran. 3. After the above development has been accomplished, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of her lumbar spine disability. The examiner should determine the nature, extent of severity, and etiology of any lumbar spine disability which may have been present at any time during the pendency of this appeal. Following review of the claims file, the examiner should provide an opinion as to whether any lumbar spine disability is related to any incident of the Veteran's active duty service. The examiner should also provide an opinion as to whether any such current lumbar spine disability is caused or aggravated by her service-connected bilateral hip disability. If the examiner finds that the Veteran has a current lumbar spine disability that has been permanently aggravated/worsened by her bilateral hip disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. After the above development has been accomplished, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of her claimed right ankle disability. The examiner should determine the nature, extent of severity, and etiology of any right ankle disability which may have been present at any time during the pendency of this appeal. Following review of the claims file, the examiner should provide an opinion as to whether any right ankle disability is related to any incident of the Veteran's active duty service. The examiner should also provide an opinion as to whether any such current right ankle disability is caused or aggravated by her service-connected left ankle or bilateral hip disabilities. If the examiner finds that the Veteran has a current right ankle disability that has been permanently aggravated/worsened by her left ankle or bilateral hip disabilities, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 5. After the above development has been accomplished, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of her bilateral foot disability. The examiner should determine the nature, extent of severity, and etiology of any bilateral foot disability which may have been present at any time during the pendency of this appeal. Following review of the claims file, the examiner should provide an opinion as to whether any bilateral foot disability is related to any incident of the Veteran's active duty service. The examiner should also provide an opinion as to whether any such current bilateral foot disability is caused or aggravated by her service-connected bilateral hip disability or her claimed right ankle disability. If the examiner finds that the Veteran has a current bilateral foot disability that has been permanently aggravated/worsened by her bilateral hip disability or her claimed right ankle disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 6. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.