Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an initial compensable rating for the service-connected osteoarthritis of the right knee with meniscus tear status post medial meniscectomy.
2. Entitlement to an initial rating in excess of 10 percent for the service-connected post-operative scar of the right knee.
3. Whether an April 1995 Regional Office decision granting service connection for right ulnar neuropathy and a right elbow disability and assigning an effective date of August 29, 1994, was clearly and unmistakable erroneous.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Donohue, Counsel
INTRODUCTION
The Veteran served on active duty from August 1954 to April 1961.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal of September 2004 and April 2010 rating decisions by the RO.
In February 2012, the Board remanded the issues on appeal for further development. The case is once again before the Board.
The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the Veteran's VA claims folder.
During the hearing, the Veteran submitted additional evidence and written argument. The RO has not considered this evidence; however, the Veteran has waived consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012).
In August 2012, prior to certification of the appeal to the Board, the Veteran's attorney submitted a written notice of withdrawal of services. Because the attorney has properly withdrawn as the Veteran representative, and because the Veteran has not since notified the Board of any new representation, the Board concludes that the Veteran is currently unrepresented in the instant appeal. See 38 C.F.R. § 20.608 (2012).
As will be discussed in further detail in the following decision, the Board finds that the April 1995 RO decision which granted service connection for right ulnar neuropathy and a right elbow disability and assigned an effective date of August 29, 1994 contained clear and unmistakable error (CUE).
The issue of an effective date earlier than August 29, 1994 for the grant of service connection for right ulnar neuropathy and a right elbow disability is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC.
FINDINGS OF FACT
1. The service-connected right knee disability is shown to be manifested by arthritis, bursitis, crepitus, a diminished range of motion and subjective complaints of pain and giving way.
2. The service-connected right knee disability is also shown to be manifested by a scar that is tender, but is not productive of additional impairment.
3. In March 1962, the Veteran filed a claim of service connection for a right elbow disability. The Veteran was notified that he must submit evidence showing the continuity of his left elbow disability from the date of discharge to the present. The Veteran did not respond to this letter or provide additional evidence, and so the claim is considered abandoned.
1. The criteria for the assignment of an initial 10 percent rating, but no higher, for the service-connected osteoarthritis of the right knee with meniscus tear status post medial meniscectomy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5003, 5019, 5258, 5260, 5261 (2012).
2. The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected right knee scar have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118 including Diagnostic Code 7804 (2012).
3. The April 1995 rating decision wherein the RO granted service connection for right ulnar neuropathy and a right elbow disability and assigned an effective date of August 28, 1994 contained CUE. 38 C.F.R. § 3.105 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).
Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."
To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.
Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.
The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.
In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.
As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.
Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.
This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
With respect to the Veteran's CUE claim, in Manning v. Principi, 16 Vet.App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the Court held that VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.
Moreover, in Livesay, the Court held in part that "there is nothing in the text or the legislative history of VCAA to indicate that VA's duties to assist and notify are now, for the first time, applicable to [CUE] motions."
The Court observed that CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. The Board therefore finds that VA's duties to notify and assist contained in VCAA are not applicable to the CUE motion. See also VAOGCPREC 12-2001 (July 6, 2001).
With respect to the Veteran's increased rating claims, as the April 2010 rating decision granted the Veteran's claims of service connection, such claims are now substantiated. His filing of a notice of disagreement as to the initial ratings assigned in that determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2012).
Rather, the Veteran's appeal as to the initial rating assignments here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.
The August 2011 Statement of the Case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code(s) for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes.
The Veteran was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned.
Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher initial rating for the service-connected disabilities at issue.
As noted, VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.
In this capacity, as noted, the Veteran's claim was remanded for additional development in February 2012. Specifically, the Board remanded the Veteran's claim in order to obtain additional VA treatment records, schedule the Veteran for a VA examination, and for the issuance of a SOC.
Following the Board's remand, the Veteran's VA treatment records were obtained and associated with his claims file. The Veteran was provided the requested VA examination in August 2012.
Finally, the record reflects that the RO provided the Veteran a SOC pertaining to his CUE claim in September 2012. The Veteran subsequently perfected an appeal of this decision.
Thus, the Board's remand instructions have been fully complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].
The record reflects that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims.
In particular, the record contains the Veteran's service treatment records, VA treatment records, private medical records, multiple hearing transcripts, multiple VA examination reports, and statements from the Veteran.
The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.
As the Board will discuss in its analysis, the Veteran was provided with VA examinations in March 2010 and August 2012. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2012).
The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He exercised the option of a personal hearing and was afforded one in February 2013 as detailed in the Introduction.
The Board notes that the Veteran also testified at a June 2011 hearing before an Acting Veterans Law Judge who ultimately remanded the issues currently on appeal.
A review of the June 2011 hearing transcript, however, reveals that the Acting Law Judge did not receive testimony on the issues currently before the Board. As such, a panel decision is not necessary. See 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3 (2012).
Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims.
Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.
II. Analysis - Increased Rating Claims
Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4.
The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993).
One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.
Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).
A. Right Knee Disability
The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See, in general, DeLuca v. Brown, 8 Vet.App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.
According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements.
In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.
The provisions of 38 C.F.R. § 4.45 state that, when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.
The service-connected right knee osteoarthritis is currently rated under Diagnostic Codes 5260-7804 (leg limitation of flexion) - (scars, unstable or painful). Upon review, however, the Board finds that Diagnostic Code 7804 is not for application because the Veteran currently receives a separate 10 percent disability rating for his service-connected right knee scar.
Therefore, the use of this Diagnostic Code in evaluating the Veteran's right knee disability would constitute improper pyramiding. See 38 C.F.R. § 4.14 [the evaluation of the same disability under various diagnoses is to be avoided].
Upon review, the Board notes that the Veteran was originally granted service connection based on a March 2010 VA examination which noted that he had a medial meniscectomy during service and that this type of surgery was likely to result in the development of arthritis years later.
The March 2010 VA examination documented the Veteran's complaints of pain in his right knee that has existed since his initial injury. He complained of having pain, and an examination revealed mild crepitus with motion.
The VA examiner noted that the Veteran's right knee condition was the "same as[,] and a result of[,] the right knee cartilage removal during service."
As the record indicates that the Veteran had cartilage removed from his right knee which causes his current symptoms, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic). This is the maximum schedular rating available under this Diagnostic Code.
The Board has also considered whether a disability rating in excess of 10 percent may be awarded under another diagnostic code.
As noted, the Veteran has been diagnosed with arthritis in his right knee that has been confirmed by X-ray studies. He has also been diagnosed with bursitis. See a May 2009 VA treatment record.
Under Diagnostic Code 5019, bursitis will be rated on limitation of motion of the affected part, as arthritis degenerative.
Degenerative arthritis is rated under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, however, 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (leg, limitation of flexion), a noncompensable evaluation is assigned for leg flexion limited to 60 degrees. A 10 percent evaluation is warranted where flexion of the knee is limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A maximum 30 percent evaluation is warranted where flexion is limited to 30 degrees.
Under Diagnostic Code 5261 (leg, limitation of extension), limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees.
Normal range of motion for the knee is defined as follows: flexion, zero degrees to 140 degrees; and extension, 140 degrees to 0 degrees. See 38 C.F.R. § 4.71, Plate II (2012).
In the present appeal, the Veteran was afforded VA examinations to determine the extent of his right knee disability in March 2010 and August 2012. After conducting a physical examination, both VA examiners reported that the Veteran's right knee range of motion was performed from 0 to 140 degrees.
The Veteran's right knee range of motion was also recorded in a May 2009 VA treatment record. Specifically, the Veteran demonstrated motion from 0 to 110 degrees of motion in his right knee.
As noted, Diagnostic Code 5260 contemplates a 20 percent evaluation where there is limitation of knee flexion to 30 degrees, which is far exceeded by the 110 degrees of right knee flexion record in May 2009 VA treatment record.
Also, Diagnostic Code 5261 contemplates a 20 percent evaluation with a limitation of knee extension to 15 degrees. An increased rating based on limitation of extension is clearly not warranted where, as here, extension of the knee joint is normal.
Based on these findings, a disability rating in excess of the 10 percent is not warranted under Diagnostic Codes 5003, 5019, 5260 or 5261.
The Board notes, in passing, that while limitation of motion has been identified, VA's of General Counsel has held that a rating under Diagnostic Code 5259 contemplates limitation of motion.
Accordingly, a separate disability rating cannot be assigned based on the Veteran's limitation of motion as such a rating would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998).
The record reflects that the Veteran has been diagnosed with a meniscus tear and the Board has considered whether a disability rating in excess of 10 percent may be assigned under Diagnostic Code 5257 (Knee, other impairment of:) or 5258 (Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint.)
Under Diagnostic Code 5257, severe recurrent subluxation or lateral instability in the knee warrants a 30 percent disability rating.
Moderate recurrent subluxation or lateral instability in the knee warrants a 20 percent disability rating.
A 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).
While the Veteran reported that his knee would occasionally give way during the March 2010 VA examination, instability was not noted during the clinical examination. The Veteran also denied experiencing subluxation during this examination.
Similarly, the VA examination in August 2012 revealed that the Veteran's knee was stable and that subluxation was not present. Accordingly, use of Diagnostic Code 5257 (Knee, other impairment) would not result in a disability rating in excess of 10 percent.
Diagnostic Code 5258 provides a 20 percent disability range for cartilage, semilunar, dislocated, with frequent episodes of 'locking,' pain, and effusion into the joint. A 20 percent is the only disability rating available under this code. See 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012).
While the Veteran has reported experiencing knee pain, the record does not reflect that his symptomatology includes frequent episodes of locking and effusion into the joint. See, e.g., the March 2010 and August 2012 VA examination reports. Diagnostic Code 5258 is therefore not applicable.
There is also no competent and credible evidence suggesting right knee functional impairment comparable to ankylosis, even with consideration of additional functional impairment due to pain, or following repeated use, and Diagnostic Code 5256 is therefore not applicable. [Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet.App. 259 (1992)].
The evidence of record also does not indicate that the Veteran has tibia and fibula impairment, and Diagnostic Code 5262 does not apply. Finally, there is no evidence of genu recurvatum and Diagnostic Code 5263 is not for application.
As noted, in DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012).
The evidence of record, however, does not reflect impairment that warrants a higher rating based on the functional impairment of the Veteran's knee.
Specifically, in March 2010, the VA examiner noted that "no painful motion was objectively noted and on repetitive testing[,] range of motion values were unchanged from baseline testing without pain, fatigue, weakness, or incoordination."
The August 2012 VA examiner similarly stated that there was "no objective evidence of pain" during range of motion testing and "on repetitive testing, range of motion values were unchanged from baseline values reported and no pain, fatigue, weakness or incoordination was noted."
Upon review, there is no basis for the assignment of additional disability due to fatigability, weakness, incoordination and the like. Though the Veteran has stated that he experiences pain and giving way, the record does not indicate that these symptoms result in any additional functional impairment.
In light of the objective medical evidence, the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted.
Based on this evidence, the Board finds that a 10 percent disability rating is warranted under Diagnostic Code 5259. While the Board has considered the application of other diagnostic codes, none would provide a disability rating in excess of 10 percent.
For the sake of brevity, the Board will address the matter of an extraschedular rating in common hereinbelow.
B. Right Knee Scar
The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002 and again in October 2008. The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case the Veteran filed his claim in October 2009. Therefore, only the regulations in effect after October 23, 2008 are for consideration.
The Veteran's right knee scar is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7804 (Scars, unstable or painful:).
Diagnostic Code 7804 provides that one or two painful or unstable scars warrant a 10 percent rating, three or four scars that are unstable or painful warrant a 20 percent rating, and five or more scars that are unstable or painful warrant a 30 percent rating.
During the March 2010 VA examination, a 6.5 by 0.25 cm scar was noted "at the inferomedial aspect of the anterior knee." The scar was noted to be "quite tender to palpation."
As the record indicates that the Veteran only has one scar on his knee that is tender, a disability rating in excess of 10 percent is not warranted.
The Board has also considered whether another diagnostic code would be more appropriate. However, because the Veteran's scar is not located on the head, face or neck and is less than 6 square inches, Diagnostic Codes 7800, 7801 and 7802 are not for application.
While Diagnostic code 7805, instructs to rate any disabling effects not considered in a rating provided under diagnostic codes 7800-7804 under appropriate diagnostic codes, as noted in the Board's discussion, the Veteran is being awarded a 10 percent rating under Diagnostic Code 5259 which takes into consideration the limitation of motion of his right knee.
Accordingly, a disability rating in excess of 10 percent is not warranted for the service-connected right knee scar.
C. Extraschedular considerations
Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96.
According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012).
An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet.App. 111 (2008) aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.
First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.
Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."
Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected right knee arthritis or right knee scar.
The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed, the symptomatology of the service-connected right knee arthritis and right knee scar consist primarily of pain and a decreased range of motion in his right knee. These symptoms are specifically contemplated under the appropriate ratings criteria.
Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.
Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.
The Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.
III. The CUE Claim
RO decisions for which a timely notice of disagreement is not filed become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Previous determinations which are 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 U.S.C.A. §§ 5109A , 7111 (West 2002); 38 C.F.R. §§ 3.105, 20.1400 (2012).
In Fugo v. Brown, 6 Vet.App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error. Id. at 43. The Court noted that CUE 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. Id.
The Court further indicated that in order to raise a valid motion of CUE, a veteran must specifically indicate what the error is and that unless it is the type of error that, if true, would be CUE on its face, the veteran must provide persuasive reasons why the decision would have been manifestly different but for the error. Id. at 44.
The Court stated that there is a presumption of validity to otherwise final decisions, and that, where such decisions are collaterally attacked, and motion of CUE is undoubtedly a collateral attack, the presumption is even stronger. Id.
The Court has propounded a three-prong test to determine whether clear and unmistakable error is present in a prior determination:
(1) '[E]ither 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 the 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 the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet.App. 242, 245 (1994) [quoting Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)].
The Court has also held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.
CUEs 'are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.' Russell v. Principi, 3 Vet.App. 310, 313-14 (1992). The claimant must assert more than a disagreement as to how the facts were weighed or evaluated. Id.
Similarly, broad brush allegations of 'failure to follow the regulations' or 'failure to give due process,' or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo v. Brown, 6 Vet.App. 40, 44 (1993).
In addition, the Court has held that VA's breach of its duty to assist cannot form a basis for a claim of CUE. Caffrey v. Brown, 6 Vet.App. 377, 382 (1994) (VA's breach of duty to assist caused incomplete record but not incorrect record).
When there is evidence both pro and con on the issue, it is impossible for a veteran to succeed in showing that the result would have been manifestly different. Simmons v. West, 14 Vet.App. 84, 88 (2000).
For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).
In the present case, the Veteran argues that that the July 1995 rating decision that initially granted service connection and established an effective date of August 29, 1994 for right ulnar neuropathy and a right elbow disability was clearly and unmistakably erroneous.
Upon review, the record reflects that the Veteran initially filed a claim seeking service connection for a right arm disability in February 1962. In a November 1962 letter, the Veteran was advised that he should submit evidence showing a continuity of the claimed right elbow disability from the date of discharge up to and including the current date. He was informed that his claim would be denied if he did not submit the requested evidence within sixty days.
It is undisputed that the Veteran did not respond to the November 1962 letter and that no further evidence was submitted.
In August 1994, the Veteran filed a new claim seeking service connection for residuals of a right arm injury. Following this claim, the service treatment records were obtained and associated with his claims file.
In the April 1995 rating decision, the RO noted that the Veteran's service treatment records document that he "sustained a missile wound of the right elbow with ulnar loss when a flare exploded. He was discharged [from] active duty and placed on the permanent retired list" in April 1962.
Based on this evidence, and a VA examination report that documented the extent of the Veteran's current disabilities, the RO granted service connection for right ulnar neuropathy and residuals of a right elbow injury.
The Veteran argues, in part, that the assigned August 29, 1994 effective date was clearly and unmistakably erroneous because VA did not assist him in obtaining evidence that would have established continuity of symptomatology when he filed his initial claim.
The service department records that were obtain in connection with the Veteran's August 1994 claim reflected that the Veteran incurred a permanent disability during service and were clearly relevant to his claim.
As these records were obtained following the 1962 denial, the April 1995 rating decision should have reconsidered the Veteran's prior 1962 claim.
It is undebatable that the Veteran's service treatment records document that he incurred a permanent disability as a result of his active duty service. Moreover, in granting service connection, the RO assigned an effective date based on the receipt of the Veteran's August 1994 claim.
Moreover, had this error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). Given this record, the RO's error in not applying the law to the facts of record manifestly changed the outcome of the case.
Accordingly, the Board finds that CUE existed in the April 1995 RO rating decision.
Specifically, the failure to consider whether an effective date earlier than August 29, 1994 was warranted for the service connection for right ulnar neuropathy and residuals of a right elbow wound was the product of CUE.
Accordingly, since it has been shown that "reasonable minds could only conclude that the original decision was fatally flawed at the time it was made," Russell, 3 Vet. App. at 313, the Board finds that the April 1995 rating decision was clearly and unmistakably erroneous.
ORDER
An increased, initial rating of 10 percent for the service-connected osteoarthritis of the right knee with meniscus tear status post medial meniscectomy is granted, subject to the regulations governing the payment of VA monetary benefits.
An initial disability rating in excess of 10 percent for the service-connected left knee scar is denied.
The April 1995 Regional Office decision that granted service connection for right ulnar neuropathy and a right elbow disability and assigned an effective date of August 29, 1994 was clearly and unmistakable erroneous.
As such, the Veteran may be entitled to an effective date as of the day following his separation from active service. The RO must be afforded the opportunity to assign an effective date for right ulnar neuropathy and a right elbow disability, prior to appellate consideration of the initial rating assignment. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Accordingly, this remaining matter is REMANDED for the following action:
Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs
Carlie passed away in November 2015 she is missed.
Question
carlie
This is quite an unusual CUE as to EED.
"By failing to reconsider the Veteran's initial claim as required by 38 C.F.R. § 3.156© the RO failed to consider whether an effective date prior to August 1994 was warranted and the law was incorrectly applied."
http://www.va.gov/vetapp13/Files2/1313567.txt
Carlie passed away in November 2015 she is missed.
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