BVA9504057 DOCKET NO. 93-07 513 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Whether clear and unmistakable error is present in a rating decision of July 1948, which rated the residuals of a shell fragment wound of the right foot, Muscle Group X, as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from April 1943 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 1992 by the Department of Veterans Affairs (VA) Fort Harrison, Montana, Regional Office (RO), which denied entitlement to the benefit sought on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the rating decision of July 1948, which rated the residuals of a shell fragment wound of the right foot, Muscle Group X, as 20 percent disabling, was clearly and unmistakably erroneous. He maintains that the evidence which was of record at the time that determination was made clearly showed that the residuals of the shell fragment wound of his right foot were 30 percent disabling. Therefore, he requests a favorable determination by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the July 1948 rating decision, which rated the residuals of a shell fragment wound of the right foot, Muscle Group X, as 20 percent disabling, was clearly and unmistakably erroneous. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The service medical records and the report of a July 1948 VA examination reveal that the veteran sustained a penetrating shell fragment wound of the right heel with a compound comminuted fracture of the right os calcis and damage to the plantar muscles and structures of the foot. 3. The unappealed rating decision of July 1948, which rated the residuals of a shell fragment wound of the right foot, Muscle Group X, as 20 percent disabling, was not supported by the evidence then of record. CONCLUSION OF LAW The July 1948 rating decision, which rated the residuals of a shell fragment wound of the right foot, Muscle Group X, as 20 percent disabling, was clearly and unmistakably erroneous. 38 U.S.C.A. § 477 (1946); Veterans Administration, Schedule for Rating Disabilities (1947); 38 C.F.R. §§ 4.72, 3.105(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the veteran failed to file a notice of disagreement following the rating decision of July 1948, it became a final and binding determination. Nevertheless, when evidence establishes clear and unmistakable error, the prior decision will be reversed or amended. With respect to the parameters of 38 C.F.R. § 3.105(a), the United States Court of Veterans Appeals (Court) has noted the following: 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. The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. [A] "clear and unmistakable error" under § 3.105(a) must be the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. Errors that would not have changed the outcome are harmless; by definition, such errors do not give rise to the need for revising the previous decision. The words "clear and unmistakable error" are self-defining. They 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. A determination that there was a "clear and unmistakable error" must be based on the record and the law that existed at the time of the prior AOJ [RO] or BVA [Board] decision. Russell v. Principi, 3 Vet.App. 310, 313-4 (1992) [emphasis in the original]. The Board's initial step in addressing the veteran's claim is to review the evidence of record at the time of the July 1948 rating decision which evaluated the residuals of a shell fragment wound of the right foot, Muscle Group X, as 20 percent disabling. The service medical records reveal that in April 1945, the veteran sustained a penetrating shell fragment wound of the right heel with a compound comminuted fracture of the right os calcis. The shell fragments were removed from the heel and the fracture was reduced. In March 1946, the fracture of the os calcis was maintained in good position and alignment and the fracture line was almost obliterated. In April 1946, the veteran had a full range of motion of his right ankle. The report of a July 1948 VA examination indicates that the shrapnel wound of the veteran's right foot entered the outer side of the right foot, passed through, and emerged at the border plantar surface of the inner side of the right heel. The entrance scar was one and one-half inches by one inch and the exit scar was two inches by one-quarter inches. Neither scar was found to be symptomatic. In addition, no apparent damage to the ankle joint, limitation of motion, or swelling was found. The examiner noted that there was moderate damage to muscle group X and that the veteran's complaints of pain and weakness upon prolonged standing were supported by the objective findings. A diagnosis of a residual shell fragment wound of the right foot with weakness on prolonged standing and moderate damage to muscle group X was recorded. The July 1948 rating decision assigned a 20 percent evaluation to the residuals of the shell fragment wound of the veteran's right foot pursuant to the provisions of Diagnostic Code 5310. Such an evaluation contemplates a moderately severe injury of the plantar muscles and structures of the foot or a severe injury of the dorsal muscles and structures of the foot. The next higher evaluation, a 30 percent rating, requires a severe injury of the plantar muscles and structures of the foot. A note in the preface of the section of the 1945 edition of the Schedule for Rating Disabilities relating to the evaluation of muscle injuries, which was subsequently promulgated as a separate regulation, see 38 C.F.R. § 4.72 (1994), indicates that a compound comminuted fracture with muscle damage from a missile constitutes a severe muscle injury. Based upon the totality of the evidence available at the time of the July 1948 rating decision, the Board finds that that decision was clearly and unmistakably erroneous. In this regard, the Board notes that the service medical records as well as the report of the July 1948 VA examination reveal that the veteran's shell fragment wound resulted in a compound comminuted fracture of his right os calcis as well as damage to the plantar muscles and structures of his right foot. Consequently, the Board finds that the July 1948 rating decision was clearly and unmistakably erroneous in failing to rate the residuals of the shell fragment wound of the veteran's right foot as 30 percent disabling. ORDER As clear and unmistakable error is present in the rating decision of July 1948, a 30 percent evaluation for residuals of a shell fragment wound of the right foot, Muscle Group X, is granted, effective from June 1946. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.