Citation Nr: 0007164 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-06 752A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to restoration of a total disability rating for compensation based on individual unemployability (TDIU), due to service-connected disabilities, effective from March 1, 1983. 2. Entitlement to an effective date earlier than March 3, 1997, for award of service connection for impairment of the left knee secondary to the service-connected right leg and left ankle disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. L. Smith, Counsel INTRODUCTION The appellant served on active duty from June 1940 to October 1945. This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. By rating decision dated April 1966, the veteran was awarded a total disability rating based on individual unemployability (TDIU), effective January 18, 1966. 2. In an October 1982 rating decision, the veteran's TDIU was terminated, effective March 1, 1983, on the basis of clear and unmistakable error in the April 1966 decision that awarded the TDIU. 3. Action by the RO in April 1966, granting entitlement to a TDIU was a plausible decision in light of the evidence then of record and the legal authority then in effect. 4. There was clear and unmistakable error in the October 1982 rating decision which terminated TDIU. 5. A claim for service connection for a left knee disorder was not received by the RO prior to March 3, 1997. CONCLUSIONS OF LAW 1. The criteria for restoration of TDIU, effective from March 1, 1983, have been met. 38 U.S.C. §§ 355, 4005 (1982); 38 C.F.R. §§ 3.104(a), 3.105(a), 4.15, 4.16 (1966); 38 U.S.C.A. § 1155, 7105 (West 1991); 38 C.F.R. § 3.104(a), 3.105(a), (1999). 2. The criteria for an effective date prior to March 3, 1997, for the grant of service connection for a left knee disorder secondary to the service-connected right leg and left ankle disabilities have not been met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS TDIU Restoration The veteran's claim for restoration of his TDIU is well- grounded in that it is plausible or capable of substantiation, based on his allegations set forth as to the shortcomings of the RO's actions in effecting the total rating termination in October 1982. 38 U.S.C.A. § 5107 (West 1991); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Further assistance to the veteran in the form of additional procedural or evidentiary development of this matter is not deemed to be in order, particularly in light of the favorable disposition of the claim herein reached. 38 U.S.C.A. § 5107(b). Various bases are advanced by the veteran for the purpose of challenging the termination of his TDIU in October 1982, including allegations that the RO failed to apply pertinent regulations then in effect. The basis of the RO's October 1982 determination was that its April 1966 action granting the veteran entitlement to a TDIU was clearly and unmistakably erroneous. For the reasons and bases which follow, it is the conclusion of this panel that there was no CUE in the RO's April 1966 determination, and thus, restoration of the veteran's entitlement to a TDIU is in order. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term, unemployability, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (O.G.C. Prec. 75-91); see Karnas v. Derwinski, 1 Vet. App. 301 (1991). Previous determinations by an agency of original jurisdiction which are final and binding, including decisions of degree of disability, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. §§ 3.104, 3.105 (1966). The United States Court of Appeals for Veterans Claims (Court) has propounded a three-pronged test to determine whether CUE is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (that is, more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant 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 it was made"; and (3) a determination that there was CUE must be based on the record and law which 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 further stated that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, which 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. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In the case at hand, service medical records indicate that the veteran, while engaged in combat with the enemy in January 1945, stepped on a landmine and sustained shrapnel wounds of the right lower leg which resulted in below-the- knee amputation, as well shrapnel wounds of the left lower leg and right forearm. By VA rating action in December 1945, service connection was established for amputation, right leg, middle-third; residuals of compound fracture of left distal tibia involving tibial-astragalus joint and favorable bony ankylosis, for which a combined schedular evaluation of 60 percent was assigned. Subsequently, the veteran was also granted service connection for residual scars of the right forearm with retained foreign body. RO action in February 1949 resulted in the assignment of a combined 70 percent rating. The veteran was also awarded special monthly compensation for loss of use of one foot. Received by the RO in January 1966 was a VA Form 21-527, Income-Net Worth and Employment Statement (In Support of Claim for Total Disability Benefits), wherein the veteran reported that he had become totally disabled as of July 1965, and that, during the prior 12 months he had worked 12 months, with no time lost due to illness. He reported that his last job consisted of "hooking up transformers". In response to the question of whether he had quit his last job on account of his physical condition, the veteran responded in the affirmative, noting that because of the condition of his arm and legs the quantity and quality of his work dropped. The veteran also reported that this job required a good deal of standing. VA examination report dated February 1966, indicated that the veteran walked with a limp and used a right leg prosthesis and cane. He reported that the left ankle had recently worsened. The diagnoses were: 1)cicatrices of skin and muscle due to trauma, upper extremities and left lower extremities; 2) ankylosis, left ankle; 3) amputation, right lower extremity, below knee; 4) osteoarthritis, left knee and ankle; 5) fracture left tibia with shortening. Additional evidence submitted included a written statement from a superintendent of a construction company, dated April 1966, which indicated that the veteran had been employed but was terminated due to "his inability to perform even the lightest duties". It was noted that "his arms did not seem to coordinate" and "his stumbling around" caused fear for his safety. Statements were also submitted from the proprietors of two businesses, a grocery and an appliance shop, which indicated that the veteran had applied for a job but due to his physical condition he was unable to perform the duties required. In rating action in April 1966, the RO noted the rather severe injuries sustained by the veteran as a result of inservice gunshot wounds and concluded that his service- connected disabilities prevented him from obtaining gainful employment. Accordingly, the veteran was found to be entitled to a TDIU, effective from the date of the RO's receipt of his employment statement. A CUE contemplates an error as to the facts or the law, and not one entailing a reasonable exercise of rating judgment. Thus, the question here is whether there was any tenable basis for the RO's grant of a TDIU in April 1966. Notwithstanding the absence of medical opinion that the veteran's service-connected disabilities were productive of such functional limitations as to result in his unemployability, or medical findings to that effect, the record then clearly noted the existence of severe disablement of the veteran by virtue of multiple service-connected disabilities caused by shrapnel wounds sustained by this combat veteran. As of April 1966, a combined disability evaluation of 70 percent was in effect and such rating had remained in effect continuously since February 1949. As well, the veteran through his January 1966 application averred that he was unable to withstand the discomfort produced by his service-connected disabilities in the performance of full-time employment. The record then also included the veteran's own statement that he had to quit his most recent job because of physical disablement, as well as statements from an employer and two prospective employers that the veteran was not physically capable of performing full-time work. The record did not then controvert any of the foregoing lay statements and it is noteworthy that truthfulness and veracity was not then at issue. In view of the evidence then on file, including the credible lay statements, it is thus concluded that there was a plausible basis for the RO's grant of the veteran's entitlement to a TDIU in April 1966. The award of a TDIU was therefore not CUE. Although not before the RO in April 1966, the Board notes solely for the purpose of identifying the circumstances under which the total rating termination was effected that the veteran filed a VA Form 21-4140, Employment Questionnaire each year. In 1967, he worked part-time briefly, identifying wages totaling $34.25. In 1968, 1969, 1970, 1971, 1972, and 1973, showing no employment of any kind in those years. In addition, there is documentation of record, dated in 1967, indicating that the veteran was considered ineligible for state vocational rehabilitation because he was physically unable to work. Pursuant to an employability review sanctioned by DVB Circular 21-82-9, the RO by way of rating action dated October 1982, found the rating decision of April 1966, wherein the veteran was found entitled to a TDIU, to have been the product of CUE. The basis of such action was stated to be that the evidence then of record failed to establish that the veteran's service connected disabilities alone "presented any insurmountable barrier to employment". It was noted that there was some evidence that the veteran became unemployed in July 1965 because his employer went out of business and he also had some impairment of the upper extremities which was not attributable to his service- connected disabilities. The 1982 rating decision contains CUE and must be set aside. First, the 1982 rating decision asserted that the 1966 rating decision relied on non-service-connected disabilities. The 1966 rating board stated that it was relying on the service- connected disabilities and a recent VA examination. There is no basis to doubt the candor or veracity of the 1966 rating board. The 1966 rating decision made no mention of upper extremity disabilities or non-service-connected conditions. It stated that the veteran was having considerable difficulty with his service-connected disabilities and was unable to obtain gainful employment by reason of his disabilities. The rating decision also noted that the veteran had recently been examined by VA. Since the 1966 rating decision clearly emphasized the VA examination, the Board reviewed the report. The veteran was examined by VA in February 1966 and did complain about his shoulders and upper extremities. The examiner noted wound scarring on both upper extremities and that was the only upper extremity diagnosis. The X-rays showed no upper extremity abnormality and there was no other upper extremity diagnosis. It is patently clear that, other than the service-connected 10 percent rating for the right forearm scars, upper extremity disabilities played no role in the 1966 rating decision. When the 1982 rating decision asserted that the 1966 rating decision was based on non- service-connected disabilities, that statement was purely speculative, not supported by any evidence and completely contrary to the explanation in the 1966 rating decision and the record at that time. Second, it is clear and unmistakable from the 1982 rating decision, and its ab initio review of the record in 1966, that the 1982 rating board was simply substituting its judgment for that of the 1966 rating board. Third, the 1982 rating decision dabbled at length with the 1982 examination results and it is clear that those results played a significant role in the decision. By letter dated December 1982, the RO informed the veteran of the termination of his TDIU rating, effective March 1, 1983. This notice also indicated that this action was due to the improvement recently recorded in the veteran's physical condition. However, the rating board failed to address 38 C.F.R. § 3.43(c) (1982). That regulation provides that some improvement is not enough to terminate TDIU benefits. Rather, it requires that actual employability be established by clear and convincing evidence. Review of the 1982 VA examination, does not show that it established, or help establish, actual employability by clear and convincing evidence. Rather, it is clear and unmistakable that the 1982 examination results influenced the 1982 rating board without showing error in 1966 or employability in 1982. It is also clear that the RO applied the improvement standard of 38 C.F.R. § 3.344, without addressing the applicable standard of 38 C.F.R. § 3.343(c). Applying the wrong regulations was CUE. Based on the foregoing, restoration of the veteran's total disability rating based on individual unemployability, due to service-connected disabilities, which was terminated by the RO in October 1982, is ordered. Restoration should be effected as of the date of termination, March 1, 1983. 38 C.F.R. § 3.400(k) (1999). Earlier effective date The Board concedes that the veteran has presented a claim which is "well-grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication of additional available evidence which would be relevant to the veteran's claim. The veteran and his representative contend that an earlier effective date is warranted for the grant of service connection on a secondary basis, for a left knee disorder. It is argued that there has been medical evidence of record of a left knee disorder since at least February 24, 1966, when on VA examination there was x-ray evidence of arthritis of the left knee and the veteran was diagnosed to have "osteoarthritis of left knee". The statutory provisions for the determination of the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 1991). Unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of an application therefor. However, if the application is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to the veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1) (West 1991). See Wright v. Gober, 10 Vet. App. 343, 346-48 (1997); see also 38 C.F.R. § 3.400(b)(2) (1999). Generally, a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. See 38 C.F.R. §§ 3.160(b), 3.151(a) (1999). Under certain circumstances, VA medical records may constitute an informal claim for increase or to reopen a compensation claim. This provision relates only when the reports relate to examination or treatment of a disability for which service connection has already been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157 (1999). The veteran's DD Form 214 indicates that he was separated from active military service in October 1945. The veteran's original award of service connection for his shrapnel wound residuals was based primarily on his service medical records and a VA hospital discharge report dated in November 1945, which contained no medical evidence of a left knee disorder or disability. It is noted that on VA examination conducted in January 1949, x-rays showed a normal left knee and clinical findings were essentially normal. The veteran submitted a claim for a TDIU rating in January 1966; review of this document revealed no reference to a left knee disorder. A VA examination report, dated February 1966, did note osteoarthritic changes on x-ray of the left knee; and diagnoses included osteoarthritis of the left knee. However, there was no clinical evidence or medical opinion that the left knee disorder was causally related to the veteran's service connected disabilities. Significantly, a claim specifying that the veteran was seeking benefits for the left knee was not received within one year from the date of the 1966 examination. 38 C.F.R. § 3.157(b)(1) (1999). Written correspondence was received from the veteran in 1994, in which he indicated that he wanted to reopen his claim for a TDIU. He also included copies of medical bills but these contained no reference to a left knee disorder. Private medical records submitted in February 1995, in support of his claim for TDIU, indicate that the veteran treated in 1992 for left shoulder and left knee pain. He was diagnosed in May 1994 with probable psoriatic arthritis of the left knee. However, these medical records contained no evidence of a relationship between the veteran's left knee disorder and his service-connected disabilities, nor did the veteran allege any. By rating decision dated June 1995 the veteran's claim for a TDIU was denied. Following the June 1995 rating decision, there was no further correspondence received from the veteran regarding his compensation benefits until March 1997. On March 3, 1997, the RO received a letter from the veteran's service representative. This three page letter primarily addressed the veteran's contentions as to restoration of his prior TDIU based on perceived CUE in the termination of same. There was no actual reference to intent to file a claim for secondary service connection for a left knee disorder. Subsequently, the veteran was afforded a VA orthopedic examination in July 1997. The examiner noted complaints of increasing problems with the left ankle and knee. Physical examination revealed serious and extensive psoriasis of the entire left leg. There was a varus deformity of the left knee and some limitation of motion. X-rays of the left knee revealed severe three compartmental degenerative joint disease with varus deformity. There were large osteophytes and essentially bone rubbing on bone, more so on the medial side of the knee. The diagnostic impression with regard to the knee was: "degenerative joint disease of the left knee which, with the deformity of his left lower extremity and ankle [his service connected disabilities], would definitely have increased his varus movement of his knee, which would have increased his symptoms in his knee..." Based on the findings of the VA examiner in July 1997, the RO by rating action dated August 1997, granted service connection for impairment of the left knee secondary to the veteran's service-connected right leg and left ankle disabilities. The effective date assigned was March 3, 1997, the date of receipt of the claim for restoration of the TDIU. The Board finds no submissions were received prior to March 3, 1997, indicating that the veteran sought service connection for this disability. The Board has considered the lay arguments of the veteran and his representative. However, as stated above medical records alone are not a claim. A claim specifying the benefit sought must be received within one year from the date of such medical examination, treatment or hospital admission. 38 C.F.R. § 3.157 (1999). Additionally, the Board notes that prior to the July 1997 VA examination report, there was no medical evidence that the veteran's left knee disorder was related to his prior service. See Grivois v. Brown, 6 Vet. App. 136 (1994) Since the veteran submitted his application more than one year after his separation from service, the law provides that the earliest effective date that can be assigned for his award of secondary service connection for a left knee disorder, is March 3, 1997. Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the veteran's claim for an earlier effective date. ORDER Subject to those provisions governing the payment of monetary benefits, restoration of the veteran's TDIU from March 1, 1983, is granted. An effective date prior to March 3, 1997 for the grant of service connection for a left knee disorder, secondary to the service connected right leg and left ankle disabilities, is denied. CLIFFORD R. OLSON Acting Member, Board of Veterans' Appeals