BVA9405865 DOCKET NO. 92-16 617 ) DATE ) ) ) THE ISSUE Whether there was clear and unmistakable error (CUE) in a December 1975 and subsequent rating decisions in failing to assign an effective date of December 16, 1975, for special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n) (West 1991). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from November 21, 1974, to December 15, 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted special monthly compensation at a rate provided for by 38 U.S.C.A. § 1114(n) (West 1991), effective from July 29, 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that there was clear and unmistakable error (CUE) within a December 1975 rating decision in failing to assign special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n) with an effective date of December 16, 1975. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence supports the grant of an effective date of December 16, 1975, for special monthly compensation at a rate provided for by 38 U.S.C.A. § 1114(n). FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. The veteran had active service from November 21, 1974, to December 15, 1975. 3. A rating decision on December 24, 1975, granted a 100 percent rating for the residuals of a head injury with loss of use of the right hand and the right foot; a 100 percent rating for chronic brain syndrome; a 20 percent rating for the residuals of fracture of the mandible; and special monthly compensation under 38 U.S.C.A. § 1114 at a rate equal to that provided for by 38 U.S.C.A. § 1114(m). The benefits were assigned an effective date of December 16, 1975, the day following the veteran's separation from service. 4. The medical evidence of record substantiates that the veteran has had an "essentially useless" right upper extremity and a disability of the right lower extremity which produced a "grossly abnormal...circumducting type" gait since suffering an August 1975 service injury. 5. The December 1975 and subsequent rating actions were not tenable decisions based on the evidence then of record. CONCLUSION OF LAW As there was CUE in the December 24, 1975, and subsequent rating decisions in not awarding special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n), an effective date of December 16, 1975, is warranted for that benefit. 38 U.S.C.A. §§ 1114, 5107, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.400, 3.350 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim are well grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. Special monthly compensation at the rate provided for by 38 U.S.C.A. § 1114(l) is warranted if the veteran, as the result of service- connected disability, has suffered loss of use of one hand and one foot. Special monthly compensation at the rate provided for by 38 U.S.C.A. § 1114(m) is warranted if the veteran, as the result of service-connected disability, has suffered loss of use of one arm with complications preventing natural elbow action and loss of use of one leg with complications preventing natural knee action. 38 U.S.C.A. § 1114(l) and (m). If a veteran has an additional single permanent disability independently ratable at 100 percent, in addition to the statutory rates payable under 38 U.S.C.A. §§ 1114(l) through (n), entitlement is warranted to the next higher statutory rate, limited to the rate equal to that provided at the level of 38 U.S.C.A. § 1114(o). 38 C.F.R. § 3.350(f)(4). BACKGROUND The veteran sustained a closed head injury in August 1975, resulting in a basilar skull fracture and traumatic occlusion of the left carotid artery with right hemiparesis, aphasia, left sixth nerve palsy, fracture of the mandible, and fracture extending through the temporal bone and left middle ear. A November 1975 addendum to an October 1975 Medical Board Proceeding prior to his separation from service disclosed: [A] dense right hemiparesis...of a spastic nature [involving] the right arm much more densely than the right leg. He [was] able to walk utilizing a short leg brace to correct his drop foot, however, his gait [was] grossly abnormal and...of a circumducting type. His right upper extremity [was] essentially useless [without] movement of the distal musculature [although he was] able to accomplish gross motions at the shoulder joint. He [had to] keep the right upper extremity in a sling in order to prevent a painful distraction of his shoulder joint. A rating decision on December 24, 1975, granted a 100 percent rating for the residuals of a head injury with loss of use of one hand and one foot; a 100 percent rating for chronic brain syndrome; a 20 percent rating for the residuals of fracture of the mandible; and special monthly compensation under 38 U.S.C. § 314 (recodified in 1991 and hereinafter cited as 38 U.S.C.A. § 1114), at a rate equal to that provided for by 38 U.S.C.A. § 1114(m). The benefits were assigned an effective date of December 16, 1975, the day following the veteran's separation from service. As explained in the December 1975 rating decision, under 38 C.F.R. § 3.350(f)(4), the veteran's entitlement to special monthly compensation at the statutory rate payable under 38 U.S.C.A. § 1114(l), due to loss of use of his right hand and right foot, combined with the permanent chronic brain syndrome independently ratable at 100 percent, warranted entitlement to special monthly compensation at the next higher statutory rate, which was a rate equal to that provided for by 38 U.S.C.A. § 1114(m). CUE AND EARLIER EFFECTIVE DATE A VA orthopedic examination in June 1976 disclosed that the veteran had had severe paralysis of his right upper and right lower extremities since a head injury in August 1975. It was noted that he wore a right below-the-knee, double bar, footdrop brace and utilized a cane in his left hand. Examination disclosed a very marked right lower extremity spastic gait. Except for some crude movements of the right shoulder, his right upper extremity was completely useless. He wore his right arm in a sling. There was spasticity throughout the right lower extremity, particularly of the gastrocnemius muscle with marked right foot clonus. While there was some ability to dorsiflex the right foot, there was essentially complete right footdrop mainly due to the overactive right foot plantar flexors. A VA neurological examination in January 1977 disclosed that the veteran had some movement of the right shoulder, but "no movement at the elbow." There was "spasticity and definite weakness of the right leg at the hip, knee and ankle." During an orthopedic examination he disclosed that he had received physical therapy for his right upper and lower extremities, but "did not find that he ha[d] improved in any way.". He continued to utilize a short right leg brace and a cane. The examiner noted that he dragged and swung his right leg around to the side and front. His entire right leg was thinner than the left. He lacked 50 percent of flexion of the right hip and 50 percent of movement of the right knee and had complete footdrop on the right side. He had flattening of the right shoulder girdle and could not "move the right arm at the shoulder...it just [hung] passively." The diagnosis was "total flaccid paralysis of [the] right arm and hand and paralysis of [the] right leg with footdrop." A VA neurological examination in August 1991 disclosed that the veteran had a very pronounced [right-sided] hemiplegia, worse in the arm than in the leg. A November 1991 VA orthopedic examina-tion noted "marked spasticity throughout his right upper and right lower extremities [with] marked limitation of motion in use." There was "no practical or significant functional use of the right elbow." He continued to have "complete right footdrop" and wore a leg brace. The examiner noted that "due to severe spasticity, movements of the right knee [were] very slow and laborious," and that "[f]or all practical purposes, there [was] no functional active use of the right knee." The aforementioned February 1992 rating decision which increased the award of special monthly compensation to a rate equal to that provided for by 38 U.S.C.A. § 1114(n) was assigned an effective date of July 29, 1991, the date of receipt of a claim for increased service-connected disability benefits. Based on the findings of the November 1991 VA examination the RO determined that under 38 C.F.R. § 3.350(f)(4), the veteran's entitlement to special monthly compensation at the statutory rate payable under 38 U.S.C.A. § 1114(m), due to loss of use of his right arm with complications preventing natural elbow action and loss of use of his right leg with complications preventing natural knee action, combined with the permanent chronic brain syndrome independently ratable at 100 percent, warranted entitlement to special monthly compensation at the next higher statutory rate, which was a rate equal to that provided for by 38 U.S.C.A. § 1114(n). Since the claim which initiated the increased special monthly compensation benefit was received on July 29, 1991, the benefit was effective from that date. The veteran's claim concerning CUE and an earlier effective date for the special monthly compensation at the level of 38 U.S.C.A. § 1114(n), was included in his notice of disagreement with the February 1992 rating decision. In essence, he contends that special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n), should have been in effect from the day following his separation from service in December 1975, since he has not had natural action of his right elbow or right knee since the August 1975 closed head injury during service. With regard to claims for CUE in previous adjudications of a claim, the United States Court of Veterans Appeals (Court) has noted that: In order for there to be a valid claim of "clear and unmistakable error," there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Upon review of the evidence of record, the Board notes that the medical evidence prior to the VA examinations in 1991 did not specifically address the effects of the veteran's service-connected disabilities regarding "natural action" of his right elbow and right knee. Nevertheless, that medical evidence did provide some indication of the impairment of function of those joints. Specifically, the October 1975 Medical Board Proceeding addendum stated that the "right upper extremity [was] essentially useless" and carried in a sling, while the right lower extremity disability produced a grossly abnormal "circumducting type" gait. The June 1976 examination reported "severe paralysis" of both extremities with a "completely useless" right arm and "spasticity throughout" the right leg. The continued lack of improvement was emphasized in the January 1977 diagnosis of "total flaccid paralysis of [the] right arm...and paralysis of [the] right leg," which closely resemble the finding in the 1991 examinations. Accordingly, the Board finds that while the examinations since the veteran's August 1975 closed head injury and prior to 1991 may not have specifically addressed the "natural action" of his right elbow or right knee, they have confirmed that the disabilities of the right upper and lower extremities have remained essentially static in that no useful function of the knee or elbow was demonstrated. This view is reinforced by the subsequent examination evidence of general wasting of the musculature of both extremities. Accordingly, the Board finds that the medical evidence of record since service clearly shows that the August 1975 closed head injury residuals have precluded natural action of the right elbow and right knee. Thus, under 38 C.F.R. § 3.350(f)(4), the disabilities of his right upper and lower extremities met the criteria for special monthly compensation benefits under 38 U.S.C.A. § 1114(m) at the time his separation from service, and combined with his permanent chronic brain syndrome independently ratable at 100 percent, warranted entitlement to special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n), the next higher statutory rate. In summary, the Board finds that there was CUE in the December 1975 and subsequent rating decisions, in that the statutory and regulatory provisions were incorrectly applied, and that an effective date of December 16, 1975, is warranted for special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n). ORDER CUE in a December 1975 and subsequent rating decisions warrants assignment of an effective date of December 16, 1975, for special monthly compensation at a rate equal to that provided for by 38 U.S.C.A. § 1114(n); the appeal is granted to this extent, subject to the law and regulations concerning the award of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 STEPHEN L. WILKINS U. H. ANG, M.D. DANIEL J. STEIN NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.