Citation Nr: 0004854 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 95-41 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for shrapnel wound left knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for shrapnel wound and fracture, left ankle, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability. 4. Whether the July 1954 rating decision which reduced the evaluation of the veteran's service connected post-concussion syndrome from 50 percent to 30 percent disabling contained clear and unmistakable error. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from February 1943 to December 1944. This appeal arises from January 1995 and February 1996 rating decisions of the Department of Veterans Affairs (VA), St. Petersburg, Florida, regional office (RO). In March 1998, the Board of Veterans' Appeals (Board) remanded the case for additional development. At that time, the issues included entitlement to an evaluation in excess of 30 percent for non-psychotic organic brain syndrome, with brain trauma and post-traumatic stress disorder. Subsequently, a rating decision dated in June 1999 increased the evaluation to 50 percent. The veteran, by written statement dated in August 1999 indicated that he was satisfied with that evaluation and considered it a complete grant of benefits. Thus, the Board will not consider that evaluation further. The March 1998 remand also directed the RO to consider the issue of whether the July 1954 rating decision which reduced the evaluation of the veteran's service connected post- concussion syndrome from 50 percent to 30 percent disabling contained clear and unmistakable error. A December 1998 rating decision determined that there was no such error in that prior rating decision. The veteran indicated that he wished to appeal that determination in August 1999, and a supplemental statement of the case was issued in September 1999. Thus, that issue is now before the Board and will be considered herein. The issues of entitlement to an evaluation in excess of 10 percent for shrapnel wound of the left ankle, and entitlement to a total disability rating based on individual unemployability, will be addressed in the remand portion of this document. FINDINGS OF FACT 1. The veteran's service connected shrapnel wound of the left knee is manifested by a severe level of disability which cannot be dissociated from the symptoms of his nonservice- connected poliomyelitis. 2. A July 16, 1954 NYRO decision reduced the disability rating for the veteran's service-connected post concussion syndrome from 50 percent (which had been effect since 1945) to 30 percent based solely on findings on an April 1954 examination report which was less full and complete than those found on a March 1949 examination, on which the 50 percent evaluation had been continued. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent for residuals of shrapnel wound, left knee, based on lateral instability, have been met. 38 U.S.C.A. §§ 1155, 5107(b)(West 1991); 38 C.F.R. Part 4, Code 5257 (1999). 2. The rating action of July 16, 1954, which reduced the disability rating for which reduced the disability rating for service-connected residuals of post concussion syndrome from 50 percent to 30 percent disabling, was clearly and unmistakably erroneous; the 50 percent evaluation in effect from April 1, 1946, is hereby restored. 38 C.F.R. §§ 3.105(a) (1999), 3.172 (1949). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims for an increased evaluation for his left knee disability and for restoration of the 50 percent evaluation based on clear and unmistakable error are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Left Knee Disability The veteran was wounded in combat on Guam in July 1944. Service connection for residuals of shrapnel wound to the left knee, with traumatic arthritis, was granted in March 1986, and a 10 percent evaluation was assigned. A December 1998 rating decision granted a separate 10 percent evaluation for traumatic arthritis of the left knee, and continued the 10 percent evaluation for shrapnel wound of the left knee under code 5257. The veteran contends that he is entitled to a higher evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Musculoskeletal disorders are rated with consideration of the resulting functional impairment. 38 C.F.R. §§ 4.1, 4.10, 4.40 (1999). Under Code 5257, the current 10 percent evaluation contemplates a slight level of recurrent subluxation or lateral instability. A 20 percent evaluation requires a moderate level of recurrent subluxation or lateral instability. A 30 percent evaluation requires a severe level of disability. 38 C.F.R. Part 4, Diagnostic Code 5257 (1999). As noted in the previous remand, the veteran currently uses a wheelchair, largely as a result of poliomyelitis, which he contracted in 1954. The VA examination in August 1994 did not refer to the veteran's history of poliomyelitis in discussing his current knee pathology. Thus, the resulting examination report was not useful in assigning disability ratings based on service connected factors as opposed to the non-service connected poliomyelitis. The Board remanded the case for the veteran to be seen by a VA examiner who would at least address the history of polio and its role in the veteran's current disability picture. To the extent possible, the examiner was asked to distinguish between the effects of the veteran's non-service connected poliomyelitis and the current status of the shrapnel wound residuals. The VA examination was conducted in May 1998. The examiner reviewed the veteran's history prior to the examination, and was aware of his polio disability. On examination, the veteran wore a full left leg brace, which extended from his foot to his thigh. The veteran did not have enough strength to flex or extend the left knee. the examiner was able to passively flex it to 95 degrees and extend it to 0 degrees. There was severe atrophy of the left quadriceps. The veteran had constant pain in the left knee, which he described as eight on a scale of one to 10. The examiner stated that he was unable to differentiate the veteran's symptoms of poliomyelitis of his left lower extremity from the shrapnel wounds to the left knee and ankle. Based on the examiner's statement, the Board must consider all manifestations of the left knee disability as part of the service connected disability. The recent findings clearly show a level of left knee disability most appropriately characterized as severe, as contemplated by the maximum schedular rating, 30 percent, under code 5257. The veteran was unable to walk on the knee or to move it actively. 38 C.F.R. Part 4, Diagnostic Code 5257 (1999). The RO has already assigned a separate 10 percent evaluation under code 5010. See VAOGPREC 23-97; 38 C.F.R. Part 4, Diagnostic Codes 5010 (1999). The Board finds that the veteran's left knee pain is contemplated by the current 30 percent evaluation under code 5257 and the separate 10 percent evaluation under code 5261. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Clear and Unmistakable Error Service connection was originally granted for psychoneurosis in January 1945, and a 50 percent evaluation was assigned. In July 1946, the disability was described as traumatic lesions, post-concussion syndrome, and the 50 percent evaluation was continued. An April 1948 rating decision listed post-concussion syndrome, with severe symptoms of anxiety psychoneurosis. Again the 50 percent evaluation was continued. The New York, New York regional office (NYRO)'s rating decision of July 1954 then reduced the evaluation to 30 percent, for residuals of post-concussion syndrome. The 30 percent evaluation was continued until the June 1999 rating decision which granted a 50 percent evaluation for non-psychotic organic brain syndrome, with brain trauma and post-traumatic stress disorder. The veteran has argued that the July 1954 decision contained clear and unmistakable error, and that the 50 percent evaluation in effect prior to that decision should be restored. At the time of the 1954 rating decision, the veteran's disability was evaluated under Code 9008. The applicable rating criteria provided a 100 percent rating where the evidence showed mental enfeeblement or dementia or post- traumatic changes in disposition, difficult cerebration, retardation, depressed states, vasomotor headaches, undue fatigability, explosive emotional reactions or convulsive seizures with complete social and industrial inadaptability. Lesser symptoms productive of considerable social and industrial inadaptability warranted a 50 percent rating. With definite social and industrial inadaptability a 30 percent evaluation was warranted. Veterans' Regulation No. 3(a), Diagnostic Code 9008 (1945). The United States Court of Veterans Appeals (Court) has held that a finding of clear and unmistakable error in a prior rating decision requires error in the prior adjudication of the claim. A claim for clear and unmistakable error must be specific and not a mere broad allegation of a failure to follow the regulations, or the failure to give due process, or any other general, unspecific error. Mindenhall v. Brown, 7 Vet. App. 271, 275, citing Fugo v. Brown, 6 Vet. App. at 44 (1993). The Court has explained that a mere difference of opinion as to the facts or disagreement with the original decision and its interpretation of the facts is not to be of the type of administrative reversible error under 38 C.F.R. § 3.105(a). Russell v. Principi, 3 Vet. App. 310 (1992) (an appellant must assert "more than a disagreement as to how the facts were weighed or evaluated"). In particular, the Court has promulgated a three-pronged 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 clear and unmistakable error must be based on the record and 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, 313-314 (1992) (en banc). In the present case, the veteran has alleged that the July 1954 rating decision was based upon clear and unmistakable error because his compensation was reduced due to an examination which was inadequate for VA purposes. The veteran seems to allege, not "that the correct facts, as they were known at the time, were not before the [RO]," but rather that "the regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). The veteran contends that the April 1954 VA examination upon which the rating for his service-connected disability was reduced was inadequate for VA purposes, referring to the requirements set forth in 38 C.F.R. § 3.344 (1999). The Board notes that § 3.344 has changed in part from those of its predecessor, 38 C.F.R. § 3.172 (1949), which was in effect in July 1954. The provisions of 38 C.F.R. § 3.172 (1949) provide, in pertinent part, with to respect ratings which have continued for long periods at the same level (5 years or more): Stabilization of disability evaluations. (a) The approved policy of the Veterans' Administration requires that all rating agencies handle cases affected by change of medical findings or diagnosis, wherein service connection or entitlement is in effect . . . . so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. In pursuance of this vital policy it is essential that the entire record of examinations and the medical- industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies especially to hospital examinations incident to treatment of intercurrent diseases and exacerbations, including bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued, will not be used as a basis of reduction. The provisions of 38 C.F.R. § 3.172 (1949), when applied to the appellant's case in 1954, are supportive of his claim. The March 1949 rating decision which continued the 50 percent rating was based on a VA examination dated in March 1949. That examination noted that the veteran was oriented, tense, very nervous, and restless. He had terrible headaches and was very nervous and irritable. He had given up his office job on the advice of his private doctor, and was presently studying singing on the G.I. Bill. He sang at times for different opera companies. The veteran's answers were relevant and coherent. No hallucinations or delusions were noted, and his memory was good. The veteran was noted to be emotionally unstable. The diagnoses were post concussion syndrome during service, and psychoneurosis, anxiety type. The April 1954 examination upon which the July 1954 reduction was based was translated from an examination report originally written in Italian. The examination was not conducted by a psychiatrist, and the neuropsychiatric findings made up only a small part of the report. The relevant portions of the report, as translated, noted: that the veteran complained of cranic disturbances and psychic alterations. He often had pain in the head, which lasted six or seven days then disappeared. In the morning he had visual disturbances. The veteran showed a state of over excitation. He answered suddenly with a little chaotic logorrhea. The veteran returned over and over to the same arguments, insisting that in America he was considered a patient. He showed an anxious state of mind for his condition and for his future. The examiner noted that there was a discontinuity between the dominant fact that the veteran did not want to appear as a nervous patient and the symptoms complained of, especially the visual disturbances, which had nothing to do with true ocular pathologic findings. The examiner had the impression that during the heat of work the disturbances increased, and they tended to diminish with tranquility and rest. The diagnosis was a nervous tic, emotive signs of a neurastheniform type. Review of the two examination reports clearly indicates that April 1954 examination report was less full and complete than the March 1949 examination, on which the 50 percent evaluation had been continued. The 1954 report, in addition to using unfamiliar terms, did not contain the specific psychiatric findings that were detailed on the 1949 report, including descriptions of the veteran's mood, affect, speech, his answers to questions, his memory, and the presence or absence of hallucinations or delusions. Nor did the 1954 report contain any finding as to whether the veteran was emotionally unstable. Based upon the foregoing, the Board concludes that the rating action of July 16, 1954, which reduced the disability rating for service-connected residuals of post concussion syndrome from 50 percent (which had been in effect since 1945) to 30 percent disabling, was clearly and unmistakably erroneous. 38 C.F.R. §§ 3.105(a) (1999), 3.172 (1949). Accordingly, the 50 percent evaluation in effect from April 1, 1946, for post concussion syndrome is hereby restored. ORDER A 30 percent evaluation for shrapnel wound of the left knee, separate from the 10 percent evaluation in effect for traumatic arthritis of the left knee, is granted. The rating action of July 16, 1954, which reduced the disability rating for service-connected residuals of post concussion syndrome from 50 percent to 30 percent disabling, was clearly and unmistakably erroneous; the 50 percent evaluation in effect from April 1, 1946, is hereby restored. REMAND The veteran contends that he is unable to obtain or retain employment as a result of his service connected disabilities. In light of the above grant of a 30 percent evaluation for the veteran's residuals of shrapnel wound of the left knee, the veteran must reconsider whether the veteran meets the criteria for a total rating based on individual unemployability. The Board also notes that pursuant to the previous remand, the RO assigned a separate 10 percent evaluation for traumatic arthritis of the veteran's left ankle. The 10 percent evaluation under code 5271 is currently on appeal. The VA General Counsel held that a single musculoskeletal disability may receive separate ratings under the diagnostic codes for arthritis (5003 and/or 5010) and under diagnostic codes which rate musculoskeletal disabilities under criteria other than limitation of motion. VAOGPREC 23-97. Since the existing 10 percent under code 5271 is based on limitation of ankle motion, it appears that the RO is rating the veteran twice for the same symptomatology. The RO should review the ratings pertaining to the veteran's left ankle disability, and insure that if more than one rating is assigned, they are not based upon the same symptomatology. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). In view of the foregoing, the case is REMANDED to the RO for the following: 1. The RO should review VAOGPREC 23-97 and the ratings assigned to the veteran's left ankle disability, and insure that if more than one rating is assigned, they are not based upon the same symptomatology (i.e., limitation of motion). 2. The RO must then adjudicate the claim for a total disability rating for compensation purposes based on individual unemployability, taking into account the evaluation of the service connected knee and ankle disabilities. If any of the benefits sought on appeal remains denied, a supplemental statement of the case should be furnished to the veteran and his representative. They should be given a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals