Citation Nr: 25005331 Decision Date: 04/21/25 Archive Date: 04/21/25 DOCKET NO. 25-00 042 DATE: April 21, 2025 ORDER The motion to revise on the basis of clear and unmistakable error (CUE) an October 28, 2021 Board decision restoring a 20 percent disability rating for lateral collateral ligament sprain, right ankle, and remanding a claim for increased rating for this right ankle disability, is denied. The motion to revise on the basis of CUE a March 4, 2022 Board decision denying a disability rating higher than 20 percent for right ankle disability is denied. ? FINDING OF FACT 1. The October 28, 2021 Board decision may not be collaterally attacked via CUE where it did not adjudicate several claims other than the right ankle as no final decision was issued on those claims in that Board decision. 2. The March 4, 2022 Board decision did not have the incorrect facts before it or misapply the law, as it did not recharacterize the Veteran's right ankle disability, as alleged, and it otherwise weighed the probative value of the relevant evidence regarding the severity of the disability at that time. CONCLUSION OF LAW 1. The criteria for revising the final, October 28, 2021 Board decision, on the grounds of CUE, have not been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. 2. The criteria for revising the final, March 4, 2022 Board decision denying a disability rating higher than 20 percent for right ankle disability, on the grounds of CUE, have not been met. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400, 20.1403, 20.1404. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the moving party, served on active duty from September 1967 to May 1970. This matter is before the Board as an original action on the March 2022 and January 2025 motions of the Veteran in which he alleges CUE in October 28, 2021 and March 4, 2022 Board decisions. 1. Whether there was CUE an October 28, 2021 Board decision restoring a 20 percent disability rating for lateral collateral ligament sprain, right ankle, and remanding a claim for increased rating for this right ankle disability 2. Whether there was CUE in a March 4, 2022 Board decision denying a disability rating higher than 20 percent for right ankle disability The October 28, 2021 Board decision (1) restored a 20 percent disability rating for lateral collateral ligament sprain, right ankle (right ankle disability); and (2) remanded an appeal for a disability rating higher than 20 percent for right ankle disability. With regard to restoring the 20 percent rating, the Board found that, at that time of a December 2015 rating decision, the medical evidence of record did not demonstrate that the Veteran's service-connected right ankle disability had undergone a material improvement maintained under the ordinary conditions of life, and thus was not an adequate basis for reducing the 20 percent rating for this disability to 10 percent. With regard to remanding the increased rating claim, the Board determined that a VA addendum opinion was needed to address the Veteran's testimony of severely decreased ankle motion with activity and other symptoms, to determine if it established functional equivalent of ankylosis (i.e., functional immobility of the joint), per Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). The March 4, 2022 Board decision denied an increased rating for a "right ankle disability." It found that the right ankle disability was rated as 20 percent disabling, which was the maximum schedular rating permitted for limited motion of the ankle, with ankylosis having not been demonstrated including by analogous functional loss. The Board explained that the Veteran's disability was rated under Diagnostic Code (DC 5271) for marked limitation of motion. The Board considered whether a higher rating could be assigned under DC 5270, on the basis of ankylosis. The Board then discussed the Veteran's own lay testimony, plus October 2016 and September 2017 private medical records indicating ankylosis. The Board found, however, that a December 2021 VA examiner's medical opinion that the medical findings were not consistent with ankylosis, including functional limitations equivalent to ankylosis of the right ankle. The Board then found the other competent evidence consistent with the December 2021 VA examiner's opinion. It cited four VA examinations finding no evidence of ankylosis. The Board went on to discuss DC 5272, DC 5273, and DC 5274, but found that these diagnostic codes were either not applicable or the evidence did not show complaints or treatment for consistent with these diagnostic codes. The Board's decision then addressed the "numerous lay statements from the Veteran." It summarized his contentions that the diagnosis of right ankle lateral collateral ligament sprain was inconsistent with findings on private examination of valgus orientation. It pointed out that he had extensively cited medical literature in support of these contentions. In weighing the lay statements in combination with the cited medical literature, the Board found the objective medical findings more persuasive. It placed "little probative value" on the medical literature as it explained general medical principles rather than the facts of this Veteran's case. Also, the Board found, the medical literature did not establish ankylosis of the right ankle in this Veteran's case. In the March 2022 CUE motion, the Veteran argues that there was CUE in the October 28, 2021 Board decision on multiple bases. First, he indicates that the Board failed to adjudicate his September 1, 2017 disability claim (other than for lateral collateral sprain and knee strain), thereby failing to comply with 38 U.S.C. § 5104 as it existed in 2017. Next, he asserted that he was repudiating his August 5, 2021 acknowledgment that the Board lacked jurisdiction over these claims. He maintains the Board had jurisdiction over those claims. Second, the Veteran argues that there was CUE in the October 28, 2021 Board decision because his September 1, 2017 claim had raised an implied claim for deltoid sprain. The Board had a duty to sympathetically adjudicate the claim, he avers. To this end, he asserts, VA erred in misdiagnosing the deltoid sprain as lateral collateral sprain. He pointed to a January 18, 2022 VA examination diagnosing deltoid sprain. Third, the Veteran raised CUE in the March 4, 2022 Board decision to remand the claim of service connection for pes planus. He argues that a March 28, 2022 VA examination was not adequate to address this issue. Fourth, he argued that there was CUE in both the October 28, 2021 Board decision and the March 4, 2022 Board decision for not adjudicating several other increased rating claims involving arthritis, foot and leg muscle tendon injuries, right quadriceps atrophy, functional loss with repetitive weight bearing usage over time, and joint diastasis and heterotopic bone formation in ligaments and widening of ankle mortice right. He asserts that the evidence supported these claims. Fifth, he "hereby advised" the Board concerning a November 18, 2021 motion to review the fee agreement issued by VA's Office of General Counsel. He asserts that his representative agreed to waive its fees and process payment to the Veteran. In the January 2025 CUE motion, the Veteran argues that the March 4, 2022 Board decision erred by recharacterizing his right ankle as lateral collateral sprain, when it should be deltoid sprain. The Veteran contends that there was CUE where the Board did not acknowledge he had deltoid sprain and deformity. He pointed to argument submitted on August 5, 2021, which included citations and articles supporting a commonly accepted understanding amongst orthopedic surgeons that insufficiency of the lateral collateral ligament results in varus orientation while insufficiency of the deltoid ligament results in valgus orientation. He avers that the two disabilities should not have been evaluated together because they each had different symptoms. His deltoid sprain caused symptoms of valgus positioning and reduced pronation and supination. Separately, his other ankle disabilities caused symptoms involving lack of flexion and extension, lack of stability, difficulty in bearing weight, pain, and deformity. He indicated that these conditions involved different anatomical parts of the ankle and foot, and these other symptoms should have been separately rated. According to the Veteran, the Board did not consider evidence, including X-ray findings, difficulty in bearing weight, pain, and deformity. He referred to private (non-VA) medical records from November 2016. He cited 38 C.F.R. § 4.25(b) and § 4.27. He further argued that traumatic foot joint arthritis should have been separately rated under 38 C.F.R. § 4.45(f). He indicated that the diagnostic code for lateral collateral (deltoid) sprain was under 38 C.F.R. § 4.73, whereas the DCs for his right foot pes planus, degenerative joint disease with strain right knee, and remaining disabilities were located in 38 C.F.R. § 4.71a. He finally argued that it was error to deny his claim for quadriceps musculotendinous junction strain (right quadriceps weakness and atrophy). The Veteran concluded with argument regarding the effective date of the separate ratings he was requesting. A. Applicable Law CUE Legal Criteria 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. 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). 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. CUE is established when the following conditions are met. First, either (1) the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Finally, the error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time the decision was rendered. Id. at 313-314, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting "manifestly changed the outcome" language in Russell, supra). 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). Increased Rating Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disability of the ankle are rated under 38 C.F.R. § 4.71a, DCs 5270 to 5274. Under DC 5270, for ankle, ankylosis of, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, DC 5270. Under DC 5271, for ankle, limitation of motion, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Effective February 7, 2021, this diagnostic code was amended. It provided for a 10 percent rating with moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A 20 percent rating was warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Under Diagnostic code 5272, for subastragalar or tarsal joint, ankylosis of, a 20 percent rating is warranted for ankylosis in poor weight-bearing position. A 10 percent rating is warranted for ankylosis in good weight-bearing position Under DC 5273, for malunion of the os calcis or astragalus, a 10 percent rating is warranted for malunion of the os calcis or astragalus with moderate deformity. A maximum 20 percent rating is warranted for malunion of the os calcis or astragalus with marked deformity. 38 C.F.R. § 4.71a, DC 5273. Under DC 5274, for astragalectomy, a maximum 20 percent rating is warranted for astragalectomy. 38 C.F.R. § 4.71a, DC 5274. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). ? B. Discussion In this case, as a preliminary matter, the Board finds that the October 28, 2021 Board decision and March 4, 2022 Board decision as to the issues decided therein. The Docket Search database on the website of the United States Court of Appeals for Veterans Claims (Court) shows that the Veteran did not appeal the March 4, 2022 Board decision to the Court. Hence, it is subject to collateral attack via the instant CUE motion. See Lang v. Wilkie, 971 F.3d 1348, 1352 (Fed. Cir. 2020). The Board also finds that the Veteran has pled CUE with sufficient particularity. His argument in his CUE motion and pleadings is sufficient to inform the Board of his contentions. Finally, the Board finds that the Veteran's CUE motion may proceed as to all issues because he has not previously filed a CUE motion for this issue. Accordingly, the matter is appropriate for consideration on the merits. The Board finds, conversely, that the October 28, 2021 Board decision is not final as to the remanded increased rating issue for the right ankle. Relatedly, he argues that there was CUE in the March 4, 2022 Board decision to remand the pes planus claim. A remand is in the nature of a preliminary order and does not constitute a final decision of the Board. 38 C.F.R. § 20.1100(b). Because a veteran may only collaterally attack a final Board decision via CUE, this part of his CUE motion is moot. Otherwise, the Board finds that the October 28, 2021 Board decision and March 4, 2022 Board decision are not final as to the other issues raised in his CUE motion where he asserts the Board failed to adjudicate other reasonably raised issues. A claimant may assert that VA failed to adjudicate a reasonably raised claim in the context of a request for revision of a prior decision on the basis of CUE. Richardson v. Nicholson, 20 Vet. App. 64, 71-72 (2006). When presented with a CUE motion asserting failure to adjudicate a reasonably raised claim, VA must make two threshold factual determinations. First, VA must apply the holding in Roberson and give a full and sympathetic reading to the pro se claimant's prior submissions to determine whether such a claim was reasonably raised. If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, the claim must be adjudicated. If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE. Richardson, 20 Vet. App. at 72. Here, neither the October 28, 2021 Board decision nor the March 4, 2022 Board decision adjudicated the issues identified in his CUE motion. His CUE motion acknowledges such. Because the Board did not issue a final decision on those matters, neither Board decision can be collaterally attacked via CUE. See Richardson, 20 Vet. App. at 72. Finally, the Veteran's CUE motion raised an issue concerning a November 18, 2021 motion to review the fee agreement issued by VA's Office of General Counsel. Again here, this is not a final decision of the Board. As such, there is no basis to review this allegation in the context of CUE. With regard to the merits of the CUE motion, the Board now finds that there was not CUE in the October 28, 2021 Board decision or March 4, 2022 Board decision. First, the Veteran argues that the March 4, 2022 Board decision erred by mischaracterizing the nature of his disability. Relatedly, he argues that there was a misdiagnosis of the disability. The Board finds that there was not CUE in the March 4, 2022 Board decision to this extent for multiple reasons. The nature of the disability was a medical matter, not an adjudicative one. In fact, the March 4, 2022 Board decision did not recharacterize the disability to any extent. An April 2015 rating decision originally granted service connection for lateral collateral ligament sprain. This award was based on a February 2015 VA examination diagnosing the Veteran's right ankle condition as lateral collateral ligament sprain. The March 4, 2022 Board decision did not make any decision regarding the nature of the disability. In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature. 38 C.F.R. § 4.27. Accordingly here, the March 4, 2022 Board decision simply retained the RO's characterization of the disability, which aligned the with medical diagnosis given. The Veteran's disagreement is with the diagnosis provided by his medical providers, but medical providers are not adjudicators and, as such, cannot commit CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); see also Shockley v. West, 11 Vet. App. 208 (1998) (a claim of misdiagnosis could be interpreted as either assertion of failure to satisfy duty to assist or disagreement with weighing of facts, neither of which can be CUE). As such, there is not CUE on this basis. In fact, the March 4, 2022 Board decision characterized the Veteran's disability very broadly as "right ankle disability." Its decision did not hinge on the exact diagnosis. Consistent with its characterization of the disability, the Board very broadly considered all potentially applicable diagnostic codes pertaining to the ankle, and it evaluated the symptoms demonstrated by the evidence without specific regard to the diagnostic label attributed to the condition. The Board did not attempt to distinguish any symptomatology to exclude a rating on that basis. Correspondingly, the Veteran argues that he had two disabilities that should not have been evaluated together because they each had different symptoms. He noted that he had included citations and articles supporting his contention. The March 4, 2022 Board decision, however, thoroughly analyzed the Veteran's contention that "his diagnosis of right ankle lateral collateral ligament sprain was inconsistent with findings on private examination of valgus orientation." The Board highlighted numerous statements from the Veteran to this end. The Board also discussed the Veteran's extensive citation to medical literature regarding this contention. The Board ultimately found that "the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a higher rating or separate rating." The Board explained that it had "considered and weighed such evidence but finds that the literature the Veteran cited does not offer any probative support for the Veteran's claim." The Board went on to discuss why it placed "little probative value on the literature referenced by the Veteran," specifically because "it was written to explain general medical principles, and not opinions regarding the specific facts in this case." The Board found that the literature did not address the facts that are specific to the Veteran's case and did not tend to establish that the Veteran has ankylosis of the right ankle. It was the prerogative of the Board, as the factfinder in the March 4, 2022 decision, to interpret the evidence and draw reasonable inferences from it. Evans v. McDonald, 27 Vet. App. 180, 187 (2014). The Board's analysis here corresponds with the law and its duty to weigh the evidence. Reasonable minds could differ on weighing the evidence, but this cannot constitute CUE. See id. In short, the Veteran disputes the characterization of his disability. His dispute, however, is with the rating action granting service connection, not the March 4, 2022 Board decision. Moreover, the Board considered his contention, but found that the evidence weighed against a favorable finding. Otherwise, the Board very broadly considered his ankle symptomatology, including under all potentially applicable diagnostic codes, but found the weight of the evidence to be against higher or separate ratings. As such, there was not CUE on this basis. The Veteran next argues that the March 4, 2022 Board decision had the incorrect facts before it to the extent it did not consider evidence, including X-ray findings, showing difficulty in bearing weight, pain, and deformity. He referred to private (non-VA) medical records from November 2016. The Board now finds that this contention is flatly contradicted by the March 4, 2022 Board decision. It specifically states that it considered private medical record from October 2016 and November 2016. It evaluated and weighed this evidence, but found it did not support an increased or separate rating. Again here, the Veteran's disagreement is with the March 4, 2022 Board decision's weighing of this evidence, but this cannot constitute CUE. See Evans, 27 Vet. App. at 185, 187. The Veteran's CUE motion also argues that the diagnostic code for lateral collateral (deltoid) sprain was under 38 C.F.R. § 4.73, whereas the DCs for his right foot pes planus, degenerative joint disease with strain right knee, and remaining disabilities were located in 38 C.F.R. § 4.71a. The Board now observes that the March 4, 2022 Board decision applied the diagnostic criteria of 38 C.F.R. § 4.71a. The RO had already assigned a rating for his right ankle disability under 38 C.F.R. § 4.71a, DC 5271, as expressly identified by the Board. The Veteran is simply incorrect that the Board misapplied 38 C.F.R. § 4.71a and § 4.73. Accordingly, the Board now finds no CUE to this extent in the March 4, 2022 Board decision. The Veteran finally argues in his CUE motion that was error to deny his claim for quadriceps musculotendinous junction strain (right quadriceps weakness and atrophy). A review of the March 4, 2022 Board decision shows, however, that it did not deny any claim involving quadriceps musculotendinous junction strain (right quadriceps weakness and atrophy). As the March 4, 2022 Board decision did not make a decision on such a claim, that Board decision cannot be collaterally attacked via CUE on this basis. (Continued on the next page) ? At the end of his CUE motion, Veteran concluded with argument regarding the effective date of the separate ratings he was requesting. The Board points out that this argument does not pertain to CUE in either rating decision. It reflects his argument concerning the effective date to be assigned if the Board were to find CUE in either rating decision. As the Board is not finding CUE, no effective date will flow from this decision. Moreover, that would be a downstream issue outside the scope of the instant CUE motion. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). For these reasons, the Board finds that it is not clear that the correct facts, as known at the time, were not before the March 4, 2022 Board decision, or that the statutory and regulatory provisions extant at the time were incorrectly applied. Consequently, the Veteran's arguments cannot sustain a finding that the March 4, 2022 Board decision denying an increased rating for a right ankle disability constitutes CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 20.1400. Accordingly, the motion to revise or reverse the decision is denied. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.