Citation Nr: 0005823 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-06 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether a March 1952 rating decision that assigned a 10 percent disability rating for the veteran's service-connected right shoulder disorder was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from August 1940 to December 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, concluded that there was no clear and unmistakable error in a March 1952 rating decision that had assigned a 10 percent disability rating for the veteran's service-connected right shoulder disorder. FINDINGS OF FACT 1. A rating decision of March 1952 assigned a 10 percent disability rating for the veteran's service-connected right shoulder disorder. The veteran was properly notified of that decision in March 1952, including his appeal rights, and he did not appeal. 2. The March 1952 rating decision was made without proper application of the complete provisions of the rating schedule. 3. At the time of the March 1952 rating decision, the evidence supported a finding that that the veteran was 20 percent disabled under Diagnostic Code 5201. CONCLUSIONS OF LAW 1. The March 1952 rating decision is final. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. § 3.160(d) (1999). 2. The March 1952 rating decision was clearly and unmistakably erroneous in not assigning a 20 percent disability rating for the veteran's service-connected right shoulder disorder. 38 C.F.R. § 3.105(a) (1999); 1945 Schedule for Rating Disabilities and Extension 7 (July 6, 1950), Diagnostic Codes 5003, 5021, and 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A January 1945 rating decision granted service connection for a bone spur on the glenoid fossa of the right shoulder and assigned a 20 percent disability rating, analogous to atrophic arthritis. After a February 1945 VA examination showed improvement in the veteran's service-connected right shoulder disorder, a March 1945 rating decision reduced his disability rating to zero percent effective from May 1945. A June 1950 rating decision confirmed the noncompensable disability rating. In January 1952, the veteran requested an increased rating, and he underwent VA physical examinations in February and March 1952. A March 1952 rating decision assigned a 10 percent disability rating for tendonitis of the supraspinatus tendon of the right shoulder under Diagnostic Code 5099-5021. A decision of a duly-constituted rating agency or other agency of original jurisdiction is final and binding as to all field offices of the Department as to written conclusions based on evidence on file at the time the veteran is notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such a decision is not subject to revision on the same factual basis except by a duly constituted appellate authority or except as provided in 38 C.F.R. § 3.105. Id. The veteran has one year from notification of a decision of the agency of original jurisdiction to file a notice of disagreement (NOD) with the decision, and the decision becomes final if a NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. §§ 3.160(d) and 20.302(a) (1999). The veteran was notified in March 1952 of the recent rating decision and appellate rights. The veteran did not disagree with that decision. Therefore, the March 1952 rating decision is final. 38 U.S.C.A. § 7105 (West 1991). Previous determinations, which are final and binding, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a) (1999). In Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) offered a three-pronged test to determine whether CUE was present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that 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 of the prior determination; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. The Court has further stated that: Clear and unmistakable error 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 . . . . If a claimant-appellant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a clear and unmistakable error claim is undoubtedly a collateral attack, the presumption is even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994). Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Id. at 44; see also Russell, 3 Vet. App. 310. Similarly, the Court has rejected as constituting CUE broad allegations of failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error." See Fugo, 6 Vet. App. at 44. Initially, the Board concludes that the veteran has raised the claim of clear and unmistakable error with the requisite degree of specificity. See Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Luallen v. Brown, 8 Vet. App. 92, 96 (1995) (a claim of clear and unmistakable error is not described in terms of well- groundedness under 38 U.S.C.A. § 5107(a) (West 1991)). The veteran's representative argues that the objective findings shown in the March 1952 examination report clearly and unmistakably showed that the criteria for a 20 percent disability rating for the veteran's service-connected right shoulder disorder had been met. The RO maintains that this was a "judgment call." However, the representative has pointed to an error in the application of the law which, if true, is such that it would compel the conclusion that the result would have been manifestly different but for the error. Because the veteran's representative alleges that a specific regulatory provision extant at the time of the 1952 RO decision was incorrectly applied, a valid claim of CUE has been raised. In 1952, the 1945 Schedule for Rating Disabilities was in effect, along with any changes made in subsequent extensions. In this case, the provisions for rating disabilities of the musculoskeletal system are pertinent. The veteran's service- connected right shoulder disorder was evaluated under Diagnostic Code 5099-5021 in 1952. The diagnosis at that time was tendonitis. Diagnostic Code 5021 for myositis indicated that ratings would be based on limitation of function of the affected part, as hypertrophic arthritis. See 1945 Schedule for Rating Disabilities. Hypertrophic arthritis was evaluated under Diagnostic Code 5003. Under this diagnostic code, substantiated degenerative arthritis, as opposed to localized hyperostosis or other joint changes due to trauma, congenital deformities, supernumerary parts, etc., or postural deformities, received a minimum disability rating of 10 percent, or, if there was a satisfactory history of occasional exacerbations, a rating of 20 percent. See 1945 Schedule for Rating Disabilities and Extension 7 (July 6, 1950). Therefore, x-ray evidence of involvement of two or more major joints or two or more minor joint groups warranted a 10 percent rating, while x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations warranted a 20 percent rating. Id. The 10 and 20 percent ratings were not to be used in rating other diseases of the bones, joints, or muscles by analogy. Id. Other ratings ranging from 10-100 percent were authorized based on extent of involvement, assuming a minimum 10 percent rating for each major joint or minor joints with x-ray confirmation of the disease and also swelling, limitation of motion, muscle spasm, or other evidence of painful motion. Id. X-rays of the veteran's right shoulder in 1952 did not show arthritic changes; therefore, there was not a "substantiated" diagnosis of degenerative arthritis. Also, the rating schedule clearly stated that ratings under Diagnostic Code 5003 would not be utilized in rating other diseases of the bones, joints, or muscles by analogy. Therefore, the veteran's service-connected right shoulder disorder, characterized in 1952 as tendonitis, should not have been assigned a rating under Diagnostic Code 5003. According to the 1945 Schedule, a rating had to be applied for the veteran's right shoulder disorder based on the extent of involvement, including, if appropriate, swelling, limitation of motion, muscle spasm, or evidence of painful motion. Normal range of motion for the shoulder was detailed for forward elevation (flexion) and abduction. 1945 Schedule for Rating Disabilities, Paragraph 40 and Plate I, The Musculoskeletal System. The hand down at the side of the body was in the 180-degree position, while the arm straight out at shoulder level was in the 90-degree position. Id. Diagnostic Code 5201 for limitation of arm motion provided the following ratings for the major extremity: 20 percent for limitation at the shoulder level, 30 percent for limitation midway between the side and the shoulder level, and 40 percent for limitation 25 degrees from the side. 1945 Schedule for Rating Disabilities. VA examination in February 1952 showed that the veteran had marked limitation of motion of the right arm with abduction, 50 percent limitation of rotation with the arm in adduction, muscle spasms, and evidence of pain. The RO determined that the report of that examination was inadequate because it did not specify, in degrees, the veteran's limitation of right arm motion. Therefore, he underwent another examination in March 1952 by two orthopedists. He was able to actively elevate (flex) and abduct the right arm only to 90 degrees. He was able to bring the arm halfway up between the shoulder and a vertical position with passive motion only. Muscle spasms and evidence of pain were noted, as well as coarse crepitation with movement. The rationale for the assignment of a 10 percent rating was not expressly stated in the March 1952 rating decision. The veteran's disability was listed under Diagnostic Code 5021 which then referenced Diagnostic Code 5003 for hypertrophic arthritis. Unless there was a substantiated diagnosis of arthritis, which there was not in this case, analogous ratings were not to be applied under Diagnostic Code 5003 which provided a minimum rating of 10 percent for a major joint affected by arthritis. Moreover, the March 1952 examination report indicated that the veteran was only able to actively elevate and abduct the right arm to 90 degrees (i.e., shoulder level). This clearly met the criteria for a 20 percent rating for limitation of motion of the arm at shoulder level according to Diagnostic Code 5201. Therefore, had the RO applied the proper rating criteria, that is Diagnostic Code 5201, in evaluating the veteran's claim in 1952, there is no question that a 20 percent evaluation was warranted for his right shoulder disorder. 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 March 1952 rating decision was clearly and unmistakably erroneous in not assigning a 20 percent rating for the veteran's right shoulder disorder. ORDER As the March 1952 rating decision was clearly and unmistakably erroneous, a 20 percent evaluation for the veteran's right shoulder disorder is hereby granted as of January 25, 1952, which was the effective date of the erroneous 10 percent rating, subject to the governing regulations pertaining to the payment of monetary benefits. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals