Muscle Injury, Beyrle v. Brown, through-and-through

This is a MEMORANDUM DECISION, yet it references some great quotes:

In 1968, 38 C.F.R. 4.72 stated, in pertinent part, that "[a]
through[-]and[-]through injury, with muscle damage, is always at least a moderate injury, for each group of muscles damaged." Entitlement to a moderate disability rating under section 4.72 does not require a finding of muscle damage, but does necessitate a finding of muscle involvement. See Beyrle v. Brown, 9 Vet.App. 377, 383 (1996); Myler, 1 Vet.App. at 574. Pursuant to 38 C.F.R. 4.55(a) (1968), "[m]uscle injuries in the same anatomical region . . . will not be combined, but instead, the rating for the major group affected will be elevated from moderate to moderately severe, or from moderately severe to severe." In Myler, supra, the Court held that the Board committed CUE when it failed to assign a moderately severe rating for a through-and-through wound affecting MGs XIII and XIV under extant regulations that mirrored sections 4.55(a) and 4.72 as they existed in 1968.
Both the appellant and the Secretary claim that the failure to assign
30% disability rating for residuals of the appellant's right thigh wounds was CUE. The 1968 rating decision awarded the appellant service connection for a gunshot wound to MG XIV, the anterior of the thigh. That injury was rated as moderate, or 10% disabling, under DC Previous Document5314Next Hit. See R. at 109. The medical evidence of record before the ratings board in 1968 included records of the appellant's treatment at USAF and USN hospitals.
The USAF hospital records indicate that he suffered two wounds to the right thigh. While it could not be determined at that time whether the wounds were through-and-through, one of the wounds originated at the posterior of the thigh (MG XIII) and was "relatively deep," involving the rectus femoris muscle in the anterior of the thigh (MG XIV). R. at 61.
Upon transfer to the USN hospital for more extensive treatment, it was determined that his right thigh injury was a through- and-through wound. R. at 58. Records from the USN hospital also show that in July 1966 the appellant had skin grafts to the posterior of his right thigh. R. at 53, 59. The record in November 1968 also contained the report of the October 1968 VA special orthopedic examination. That report described the pertinent wound as "through the right thigh." R. at 96. The examiner described a 4- inch by 1¼-inch scar on the posterior of the right thigh with tissue missing below the scar. R. at 97. X-rays showed numerous bits of shrapnel in the posterior of both thighs. R. at 98.
In the decision on appeal, the Board observed that the appellant's medical records described scars on the right posterior thigh from a through-and-through wound and a loss of tissue beneath the scar. R. at 21. However, the Board, like the RO in 1968, failed to consider a separate rating for the posterior thigh muscles or how the rating of the appellant's thigh injuries are affected by 38 C.F.R. 4.55(a) and 4.72 (1968). The medical evidence before the Board in 1968 clearly establishes that the appellant suffered a through-and-through wound that penetrated through the posterior of his thigh, MG XIII, and into the muscles in MG XIV in the anterior of the thigh. It is undebatable that such a wound involved the muscles in the posterior of his thigh. Thus, pursuant to section 4.72, the appellant should have been awarded a moderate rating for MG XIII, in addition to his moderate rating for MG XIV. See Beyrle, 9 Vet.App. at 383; Myler, 1 Vet.App. at 574; 38 C.F.R. 4.73, Diagnostic Code (DC) 5313 (1968).
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 02-0366

Patrick Engelman, Appellant,
v.
Anthony J. Principi,
Secretary of Veterans Affairs, Appellee.

Before FARLEY, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

FARLEY, Judge: Before the Court is a July 19, 2001, decision of the
Board of Veterans' Appeals (BVA or Board) that (1) granted an initial rating of 30%, but no higher, for right radial nerve palsy from October 10, 1968; (2) denied an initial rating in excess of 10% for residuals of a shell fragment wound of the left second toe; (3) determined that a November 1968 rating decision that assigned a 10% rating for residuals of a gunshot wound of the right thigh, Muscle Group (MG) XIV, did not contain clear and unmistakable error (CUE); (4) denied a separate disability rating for a right-shoulder disability secondary to service-connected
residuals of a gunshot wound of the right upper extremity; and (5) denied an effective date prior to June 1, 1989, for the assignment of a combined 100% disability evaluation. Record (R.) at 1-27. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a). The pro se appellant has filed an informal brief and a reply brief. The Secretary has filed a brief. Single-judge disposition is appropriate when, as here, the issue is of relative simplicity and the outcome is not reasonably debatable. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Court will reverse and remand in part and vacate and remand in part the Board decision.


I. BACKGROUND
The veteran served on active duty in the U.S. Marine Corps from
August 1965 to January 1968, including service in Vietnam. R. at 30. On
July 18, 1966, he sustained multiple gunshot wounds and shell fragment
wounds to the right upper arm, right forearm, both thighs and left foot.
R. at 58. After initial treatment at a field hospital, he was transferred
to a United States Air Force (USAF) Hospital where his wounds were
described as follows: His right upper extremity exhibited (1) a through-
and-through wound of the mid-arm with a comminuted fracture of the
midshaft of the humerus; (2) a severe contusion of the right radial nerve
that caused hypesthesia of the radial nerve distribution and an absence
of radial nerve function; (3) a second wound on the forearm over the
common extensor muscles that was "relatively superficial"; and (4) a wound
over the dorsum of the right hand over the 5th metacarpal that had been
previously closed. R. at 60, 62. Wounds to his left lower extremity
included: (1) A through-and-through wound in the mid-thigh with some
muscle destruction of the anterior and hamstring muscles; (2) amputated
great toe at the interphalangeal (IP) joint; and (3) skin and soft
tissue loss of the second toe exposing the flexor tendons and capsules of
the IP joints. R. at 60. On the right lower extremity he had two wounds
of the thigh which could not be determined to be through-and-through, one
of which, a posterior wound in the mid thigh, was relatively deep,
involving the rectus femoris muscle. R. at 61.
The veteran was subsequently transferred to a United States Naval (
USN) Hospital for further treatment where a physical examination revealed
that the wounds to his right thigh were through- and-through. R. at 58.
The fracture of the right humerus was treated by shortening and bone
grafting using bone from the left iliac crest, which resulted in radial
nerve palsy and partial recovery of radial nerve function. R. at 66, 76,
85. An osteotomy of the proximal IP joint on the left foot was
performed and fusion of that joint and the distal joint was accomplished.
Id. In July 1966, the veteran underwent skin grafting, including skin
grafts to the posterior of his right thigh. R. at 53, 59.
In December 1967, a Medical Board found the veteran unfit for further
duty. R. at 88-90. The veteran was medically discharged in January 1968.
R. at 30. In June 1968, the veteran filed a claim for VA compensation for
gunshot and shell fragment wound residuals. See R. at 108, 212. In
October 1968, the veteran was afforded a special orthopedic examination
and the examiner provided the following diagnoses:
1. Gunshot wound, right upper arm perforating with
compound comminuted fracture, right humerus,
postoperative with bone graft[] [p]late[,] 2½ inch
shortening of the humerus and deformity of the humerus
with marked atrophy of the muscles of the upper arm,
especially the posterior[,] medial, and lateral muscles
and moderate atrophy of the biceps muscles with residual
scars and neuroma in lateral scar above the elbow.
Partial ankylosis, right elbow with no flexion beyond 67
degrees and lacking 30 degrees of extension and forearm
of slight moderate pronation and only a few degrees of
pronation and supination. There is also marked atrophy
of the forearm, and scar, right forearm. Limitation of
motion of the right shoulder. Numerous bits of shrapnel
about the fracture site.

2. Gunshot wound, shrapnel wound, both thighs, perforating with
residual scars and muscle loss left thigh, anterior lateral
compartments quadriceps, femoral vastus lateralis as described.
Numerous bits of shrapnel in the soft tissues-both thighs.

3. Partial amputation, left big toe and injury second toe, left
with marked deformity and callus formation on the deformed base
. . . . Retained bits of shrapnel big [and] 2nd toes.

4. Gunshot wound right forearm proximal . . . of the radius,
healed with ulnar angulation, retained bits of shrapnel about
proximal area of the forearm.

R. at 98. The examiner's report described the veteran's right thigh
wound as "through the right thigh." R. at 96. The examiner also
described a 4-inch by 1¼-inch surgical scar on the posterior of the right
thigh, with "considerable depression on palpation showing absence of
tissue over the area of the scar and absence of lateral fascia over the
area." R. at 97.
In November 13, 1968, a VA regional office (RO) awarded the veteran
service connection for (1) gunshot wound, right upper arm, comminuted
fracture, humerus, with 2½ inches of shortening and loss of muscle tissue,
assigned a 100% prestabilization disability rating under 38 C.F.R. 4.
28 (2003), effective from February 1, 1968, and a 60% disability rating
from October 10, 1968; (2) limitation of motion, right elbow due to
fracture, rated as 30% disabling from October 10, 1968; (3) gunshot wound,
MG XIV, left thigh, rated as 30% disabling from October 10, 1968; (4)
gunshot wound right thigh, MG XIV, rated as 10% disabling from October 10,
1968; and (5) amputation, left big toe, rated as 10% disabling from
October 10, 1968. R. at 109. The veteran was assigned a 90% combined
rating as of October 10, 1968. Id.
In October 1990, the veteran was granted service connection for
post-traumatic stress disorder (PTSD), rated as 30% disabling, effective
May 1990. R. at 146. His combined rating remained at 90%. Id. In a
September 1993, RO decision, his rating for PTSD was increased to 70% and
his combined rating was increased to 100%, both effective May 1990. R. at
189-90.
In January 1994, the veteran filed a Notice of Disagreement (NOD)
with respect to the May 1990 effective date for his 100% combined rating.
See R. at 195. The RO issued a Statement of the Case (SOC) in February
1995 (R. at 192-200), and the veteran filed a Substantive Appeal in
October 1995. R. at 202-08. In his Substantive Appeal the veteran
claimed, inter alia, that the November 1968 rating decision was the result
of CUE in that it failed to address the issues of service connection for
partial ankylosis of the right wrist, partial radial nerve palsy of the
right forearm and right hand, residuals of shell fragment wound to the
left 2nd toe, and a painful scar on the right upper arm. R. at 203-05.
He also claimed that the 1968 rating decision contained CUE in that the
gunshot wound to his right thigh was a through-and-through wound that
affected both MG XIV (anterior thigh group) and MG XIII (posterior thigh
group), and therefore his 10% rating should have been elevated to 30%
pursuant to 38 C.F.R. 4.55(a) (1968) (providing that ratings for two
muscle injuries in the same anatomical region will not be combined, but
instead, the rating for the major group affected will be elevated to the
next level). R. at 206-07.
In April 1996, the RO determined that there was no CUE in the 1968
decision. R. at 211-16. However, the RO did find that the 1968 RO
decision should have considered service connection for partial radial
nerve palsy, residuals of shell fragment wound to the left 2nd toe, and
painful scar on the right upper arm, and that those issues represented
open claims rather than CUE in the 1968 decision. R. at 211-13. The RO
awarded service connection for the veteran's left 2nd toe injury and right
upper arm scar rated at 0% and 10%, respectively, both effective February
1968. R. at 212-13. His combined rating for the period from October 1968
to May 1990 remained at 90%. R. at 216. With respect to service
connection for partial radial nerve palsy, the RO deferred a decision
pending completion of a new VA examination. R. at 212.
A VA neurological examination in May 1996 revealed, inter alia,
partial radial nerve damage of the right arm. R. at 226. In September
1996, the RO granted service connection for partial right radial nerve
palsy and assigned a 20% rating for the condition effective October 1995.
R. at 229-31. In October 1996, the veteran filed an NOD with respect to
both (1) the rating and effective date assigned for right radial nerve
palsy in the September 1996 decision, and (2) the April 1996 decision
that assigned a 0% rating for his left second toe injury and denied
a higher rating for his right thigh injury on the basis of CUE. R. at
235.
On June 12, 1997, the RO issued a rating decision that granted an
earlier effective date of March 1993 for the 20% rating for right radial
nerve palsy. R. at 240. On the same day, the RO issued a Supplemental
SOC (SSOC) regarding its denial of a rating greater than 20% and an
effective date earlier than March 1993 for the 20% rating. R. at 245. In
January 1998, the veteran filed a Substantive Appeal addressing his right
thigh injury, left 2nd toe injury, and right radial nerve palsy. R. at
259.
In a February 1998 rating decision, the RO assigned an earlier
effective date of June 1, 1989, for the veteran's 70% PTSD rating. R. at
280. This resulted in a combined rating of 100%, effective June 1, 1989.
The RO also granted service connection for residuals of a gunshot wound of
the posterior left thigh, rated as 10% disabling from February 1968; and
for a scar, left iliac crest, rated as 0% disabling, effective February
1968. The rating decision determined that the combined rating remained at
90% from October 10, 1968, until June 1, 1989. R. at 280-83.
In a May 1998 SSOC, the RO granted an earlier effective date of
October 10, 1968, for the 20% rating assigned for right radial nerve palsy,
and increased the rating for shell fragment wounds of the left second toe
from 0% to 10%, effective October 10, 1968. R. at 320-22. The SSOC
also continued the denial of an increased rating for the veteran's right
thigh injury based on CUE and determined that entitlement to an earlier
effective date for the combined 100% rating prior to June 1, 1989, was not
established. R. at 322-23. In a rating decision of May 1998, the RO
denied a separate rating for right shoulder involvement of the gunshot
wound fracture of the right upper arm. R. at 326.
In the July 19, 2001, decision on appeal, the Board (1) granted an
initial rating of 30%, but no higher, for right radial nerve palsy from
October 10, 1968; (2) denied an initial rating in excess of 10% for
residuals of a shell fragment wound of the left second toe; (3) determined
that the November 1968 rating decision that assigned a 10% rating for
residuals of a gunshot wound of the right thigh, MG XIV, was not the
result of CUE; (4) denied a separate disability rating for a right
shoulder disability secondary to service-connected residuals of a gunshot
wound of the right upper extremity; and (5) denied an effective date prior
to June 1, 1989, for the assignment of a combined 100% disability
evaluation. R. at 1-27. The Board also noted the enactment of the
Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096. R.
at 6. With regard to the notice requirements of the VCAA, the Board
stated:
The appellant was provided adequate notice as to the evidence
needed to substantiate his claims. In addition, the
discussions in the ratings decisions, the [SOCs], the [SSOCs
], and information sent to the appellant informed him of the
information and evidence needed to substantiate his claims
. . . . As such, VA has no outstanding duty to inform the
appellant that any additional information or evidence is needed
.

R. at 6.
In his brief, the appellant states that he is appealing all the
issues listed in the Board decision. Appellant's Informal Brief (Br.) at
1. In his response, the Secretary concedes that the Board erred in
concluding that there was no CUE in the 1968 RO decision that assigned a
10% rating for residuals of a gunshot wound of the right thigh.
Secretary's Br. at 20-25. He states that under the rating principles
extant at the time of the 1968 rating decision and illustrated by the
Court's decision in Myler v. Derwinski, 1 Vet.App. 571 (1991), the
appellant was entitled to a 30% rating for gunshot wound residuals to the
right thigh. Id. The Secretary urges the Court to reverse the Board
decision with regard to that matter and order the assignment of a 30%
rating for the appellant's right thigh injury effective from October 10,
1968. Id. The Secretary argues for affirmance of those parts of the
Board decision that denied (1) a rating in excess of 30% for right radial
nerve damage; (2) a rating in excess of 10% for residuals of a shell
fragment wound to the left 2nd toe; and (3) a separate rating for
limitation of motion of the right shoulder under DC 5201, or under DC 5202
as secondary to the gunshot wound to the right humerus. Id at 13-20. He
argues for dismissal of the claim for an effective date prior to June 1,
1989, for the assignment of a combined rating of 100% as moot because an
assignment of a 30% rating for the right thigh residuals effective October
10, 1968, will result in a combined rating of 100% effective from that
date. Id. 25-26.
In his reply brief, the appellant, inter alia, claims that the 1968
RO committed CUE by prematurely reducing his 100% prestabilization
rating for his right upper arm to 60%. Appellant's Reply Br. at 9-11. He
argues that but for that error he would have been entitled to special
monthly compensation (SMC) in 1968. Id. at 10-12. He opposes the
Secretary's concession of CUE regarding his right thigh rating without
resolution of his claim regarding entitlement to SMC because he fears a
decision by this Court on CUE will preclude his raising any additional CUE
claims with respect to the 1968 RO decision. Id. at 12.
II. ANALYSIS
A. VCAA
Although the VCAA is not applicable to CUE claims, see Livesay v.
Principi, 15 Vet.App. 165, 179 (2001) (en banc), it does apply to the
appellant's non-CUE claims. Section 5103(a), title 38, U.S. Code, as
amended by the VCAA, provides:
Upon receipt of a complete or substantially complete
application, the Secretary shall notify the claimant and the
claimant's representative, if any, of any information, and any
medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As part
of that notice, the Secretary shall indicate which portion of
that information and evidence, if any, is to be provided by the
claimant and which portion, if any, the Secretary, in
accordance with section 5103A of this title and any other
applicable provisions of law, will attempt to obtain on behalf
of the claimant.

38 U.S.C. 5103(a). The regulation implementing 38 U.S.C. 5103(a)
states, in pertinent part:
When VA receives a complete or substantially complete
application for benefits, it will notify the claimant of any
information and medical or lay evidence that is necessary to
substantiate the claim. VA will inform the claimant which
information and evidence, if any, that the claimant is to
provide to VA and which information and evidence, if any, that
VA will attempt to obtain on behalf of the claimant. VA will
also request that the claimant provide any evidence in the
claimant's possession that pertains to the claim.

38 C.F.R. 3.159(b) (2003); see Paralyzed Veterans of Am. v. Sec'y of
Veterans Affairs, 345 F.3d 1334, 1347 (Fed. Cir. 2003) (noting that 3.
159(b)(1) "sets out with reasonable clarity and specificity the notice VA
is required to provide a claimant and is entirely consistent with the
statutory requirement of 5103(a)").
In Quartuccio v. Principi, this Court held that a remand for
compliance with the VCAA was required because the Secretary neither "'
notif[ied] the claimant . . . of any information, and any medical or lay
evidence, not previously provided to the Secretary that [was] necessary to
substantiate the claim' [nor did he] 'indicate which portion of that
information and evidence, if any, is to be provided by the claimant and
which portion, if any, the Secretary . . . will attempt to obtain on
behalf of the claimant.'" Quartuccio, 16 Vet.App. 183, 187 (2002) (
quoting 38 U.S.C. 5103(a)). In that case, the Court found that
documents notifying the claimant of evidence that would be "useful" or
"potentially helpful" were insufficient where those notifications failed
to identify "who is responsible for obtaining such evidence." Id.
As in Quartuccio, supra, there is no evidence in the record that
the Secretary ever notified the claimant of who is responsible for
obtaining the evidence necessary to substantiate his claim. Although the
Board found that the ratings decisions, the [SOCs], the [SSOCs], and
other information sent to the appellant notified the appellant of the
information and evidence necessary to substantiate his claims, the Board
failed to discuss whether VA ever notified the appellant of who is
responsible for obtaining such evidence. See 38 U.S.C. 5103(a). Nor
does the record contain any evidence that VA complied with its duty to "
request that the claimant provide any evidence in the claimant's
possession that pertains to the claim[s]." 38 C.F.R. 3.159(b); see
Quartuccio, supra; see also Charles v. Principi, 16 Vet.App. 370, 373-
74 (2002) (holding that Board's failure to address adequately whether VA
complied with its duties under the VCAA is remandable error pursuant
to 38 U.S.C. 7104(a) and (d)(1)).
Having determined that VA failed to comply with the requirements of
the VCAA, the Court must "take due account of the rule of prejudicial
error." 38 U.S.C. 7261(b); see Conway v. Principi, 353 F.3d 1369,
1375 (Fed. Cir. 2004). It is not for the Secretary, or this Court, to
predict what evidentiary development may or may not result from the notice
required by the VCAA. See Charles, supra. Here, because the
appellant has not had the opportunity to benefit from and react to the
notices that the Secretary was and is obligated to provide, any conclusion
by the Court that the appellant is not prejudiced would be pure
speculation. See Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir.
2004) ("Where the effect of an error on the outcome of a proceeding is
unquantifiable, . . . we [can] not speculate as to what the outcome might
have been had the error not occurred."); Daniels v. Brown, 9 Vet.App.
348, 353 (1996) (Court unable to conclude error not prejudicial where "it
is possible that the appellant would have sought and obtained additional
medical opinions, evidence, or treatises"). Nor is this an instance where
the Court can conclude that the law would be dispositive irrespective of
any additional factual or evidentiary development. See Valiao v.
Principi, 17 Vet.App. 229, 231-32 (2003) (holding that the Board's
error concerning the notice requirements of the VCAA was nonprejudicial
where the facts were not in dispute, the facts averred could not
conceivably lead to a different result, and the Board's decision was
reduced to a matter of law); cf. Mason v. Principi, 16 Vet.App. 129,
132 (2002) (where "the law as mandated by statute, and not the evidence,
is dispositive . . . , the VCAA is not applicable"). Accordingly, and
having taken "due account of the rule of prejudicial error," 38 U.S.C.
7261(b), the Court will remand the matters addressed by the appellant's
non-CUE claims.
The Court will not address the other arguments and issues raised by
the appellant in connection with his non-CUE claims. "A narrow decision
preserves for the appellant the opportunity to argue any claimed errors
before the Board at the readjudication." Best v. Principi, 15 Vet.
App. 18, 20 (2001). Since the Board on remand is required to consider
anew the appellant's claim, the appellant will have the opportunity to
present to the Board any additional evidence and argument in support of
his claim. See Kay v. Principi, 16 Vet.App. 529, 533 (2002); Best, 15
Vet.App. at 20; Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (
per curiam order). The Court expects that the Board, in accordance with
all applicable laws and regulations, "will reexamine the evidence of
record, seek any other evidence necessary to support the appellant's
claims, and issue a timely, well- supported decision in the case."
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991); see also 38 U.S.C.
7112 (as added by the Veterans Benefits Act of 2003, Pub. L. No. 108-183
, 707(b), 117 Stat. 2651, 2673 (Dec. 2003)) (requiring Secretary to
provide "expeditious treatment" for claims remanded by the Court).
Should the Board rule against the appellant on his non-CUE claims, he will
have the opportunity to present any allegations of error to the Court in a
future appeal. See Best, supra.
B. CUE
A claim of CUE is a collateral attack on a final decision by the RO
or the Board. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (
Fed. Cir. 2000), cert. denied, 532 U.S. 973 (2001). CUE claims as to RO
decisions are permitted by 38 U.S.C. 5109A; 38 U.S.C. 7111 authorizes
such claims as to Board decisions. Both statutes contain identical
language: "If evidence establishes the error, the prior decision shall be
reversed or revised." See 38 U.S.C. 5109A(a) and 7111(a); see also
38 C.F.R. 3.105(a) and 20.1403(a) (2003). The Court's caselaw
pertaining to Board decisions on claims of CUE in prior final RO decisions
is equally applicable to Board decisions on collateral attacks on prior
BVA decisions. See Jordan (Timothy) v. Principi, 17 Vet.App. 261,
268 (2003) (citing Disabled Am. Veterans, 234 F.3d at 696-98); Cook v.
Principi, 318 F.3d 1334, 1338- 41 (Fed. Cir. 2002), cert. denied, 539 U.S.
926 (June 16, 2003); Simmons v. Principi, 17 Vet.App. 104, 114 (2003) (
noting the "functional equivalen[ce]" of 38 U.S.C. 5109A(e) and 7111(
e)).


To establish CUE in a final decision of an RO or the BVA, a
claimant must prove that
(1) either the facts known at the time were not before the
adjudicator or the law then in effect was incorrectly applied, (
2) that an error occurred based on the record and the law that
existed at the time the decision was made, and (3) that had the
error not been made the outcome would have been manifestly
different.
Grover v. West, 12 Vet.App. 109, 112 (1999). CUE is the sort of error
that is "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) (en
banc). A CUE claim cannot be raised for the first time before this Court;
the Court will only review such claims that have been the subject of a
final prior BVA adjudication. Id. ("The necessary jurisdictional 'hook'
for this Court to act is a decision of the BVA on the specific issue of
'clear and unmistakable error.'"). In reviewing Board decisions
evaluating allegations of CUE in prior final decisions, the Court "cannot
conduct a plenary review of the merits of the original decision." Archer v
. Principi, 3 Vet.App. 433, 437 (1992). We are limited to determining
whether the Board decision before us was "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law," including whether
the decision is supported by an adequate statement of reasons or bases.
38 U.S.C. 7261(a)(3)(A), 7104(d)(1); see Lane v. Principi, 16 Vet.
App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003) (affirming
this Court's long-standing precedents regarding standard of review in CUE
determinations); Andrews v. Principi, __ Vet.App. __, __, No. 98-1849,
slip op. at 7 (June 29, 2004).
In 1968, 38 C.F.R. 4.72 stated, in pertinent part, that "[a]
through[-]and[-]through injury, with muscle damage, is always at least a
moderate injury, for each group of muscles damaged." Entitlement to a
moderate disability rating under section 4.72 does not require a finding
of muscle damage, but does necessitate a finding of muscle involvement.
See Beyrle v. Brown, 9 Vet.App. 377, 383 (1996); Myler, 1 Vet.App.
at 574. Pursuant to 38 C.F.R. 4.55(a) (1968), "[m]uscle injuries in
the same anatomical region . . . will not be combined, but instead, the
rating for the major group affected will be elevated from moderate to
moderately severe, or from moderately severe to severe." In Myler,
supra, the Court held that the Board committed CUE when it failed to
assign a moderately severe rating for a through-and-through wound
affecting MGs XIII and XIV under extant regulations that mirrored
sections 4.55(a) and 4.72 as they existed in 1968.
Both the appellant and the Secretary claim that the failure to assign
30% disability rating for residuals of the appellant's right thigh wounds
was CUE. The 1968 rating decision awarded the appellant service
connection for a gunshot wound to MG XIV, the anterior of the thigh. That
injury was rated as moderate, or 10% disabling, under DC Previous Document5314Next Hit. See R. at
109. The medical evidence of record before the ratings board in 1968
included records of the appellant's treatment at USAF and USN hospitals.
The USAF hospital records indicate that he suffered two wounds to the
right thigh. While it could not be determined at that time whether the
wounds were through-and-through, one of the wounds originated at the
posterior of the thigh (MG XIII) and was "relatively deep," involving the
rectus femoris muscle in the anterior of the thigh (MG XIV). R. at 61.
Upon transfer to the USN hospital for more extensive treatment, it was
determined that his right thigh injury was a through- and-through wound.
R. at 58. Records from the USN hospital also show that in July 1966 the
appellant had skin grafts to the posterior of his right thigh. R. at 53,
59. The record in November 1968 also contained the report of the October
1968 VA special orthopedic examination. That report described the
pertinent wound as "through the right thigh." R. at 96. The examiner
described a 4- inch by 1¼-inch scar on the posterior of the right thigh
with tissue missing below the scar. R. at 97. X-rays showed numerous
bits of shrapnel in the posterior of both thighs. R. at 98.
In the decision on appeal, the Board observed that the appellant's
medical records described scars on the right posterior thigh from a
through-and-through wound and a loss of tissue beneath the scar. R. at 21
. However, the Board, like the RO in 1968, failed to consider a separate
rating for the posterior thigh muscles or how the rating of the
appellant's thigh injuries are affected by 38 C.F.R. 4.55(a) and 4.72 (
1968). The medical evidence before the Board in 1968 clearly establishes
that the appellant suffered a through-and-through wound that penetrated
through the posterior of his thigh, MG XIII, and into the muscles in MG
XIV in the anterior of the thigh. It is undebatable that such a wound
involved the muscles in the posterior of his thigh. Thus, pursuant to
section 4.72, the appellant should have been awarded a moderate rating for
MG XIII, in addition to his moderate rating for MG XIV. See Beyrle, 9
Vet.App. at 383; Myler, 1 Vet.App. at 574; 38 C.F.R. 4.73,
Diagnostic Code (DC) 5313 (1968). Moreover, as the Secretary concedes,
even if the RO had relied exclusively on the USAF hospital records that
could not determine if the posterior thigh wound was through-and-through,
the presence of a deep wound penetrating through the posterior thigh and
into the anterior thigh, with numerous pieces of shrapnel in the posterior
thigh, also would have unquestionably established a moderate rating for MG
XIII. See 38 C.F.R. 4.56(a), (b) (1968).
Because the appellant had two wounds in the same anatomical area that
should have been rated at least moderate, the RO was required to assign a
moderately severe, or 30%, disability rating under section 4.55(a). See
Myler, supra; DCs 5313, Previous Hit5314Next Document. The failure of the RO to assign such a
rating was an undebatable error but for which the result would have been
manifestly different. See Grover, Russell, and Myler, all supra.
Accordingly, the Court holds that the Board's determination that there was
no CUE in the 1968 RO decision assigning a 10% rating for wounds to the
right thigh is not in accordance with law. 38 U.S.C. 7261(a)(3)(A); see
Lane and Andrews, both supra. The appellant's CUE claim concerning
possible entitlement to SMC has not been addressed by the Board and is
therefore not before the Court. See Russell, 3 Vet.App. at 313-14 (
holding that the Court will only review CUE claims that have been the
subject of a final BVA adjudication). The appellant will not be
precluded from raising his claim in the future. See Brown v. West, 203 F.
3d at 1378, 1381-82 (2000) (holding that Board decisions regarding CUE in
prior RO decisions only subsume those issues in the RO decision that are
addressed by the Board). In addition, the Court observes that 38 C.F.R
. 4.55(a) (1968) may also be applicable to the injuries to the
appellant's left thigh. However, that issue has not been raised by either
party and was also not addressed by the Board's decision.

III. CONCLUSION
Upon consideration of the foregoing, the Board decision is reversed
to the extent it concluded that there was no CUE in the 1968 rating
decision that assigned a 10% rating for residuals of gunshot wounds to the
appellant's right thigh. That matter is remanded for the Board to assign
a 30% rating for the appellant's right thigh, and a 100% combined rating,
both effective October 10, 1968. The appellant's CUE claim concerning
SMC is dismissed. With respect to the appellant's non-CUE claims, the
Board decision is vacated and those matters are remanded for
readjudication.

DATED: July 29, 2004








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Patrick Engelman
3726 W. Palo Alto
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General Counsel (027)
Department of Veterans Affairs
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Washington, DC 20420