Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
RICHARD E. FRY, APPELLANT,
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Richard E. Fry appeals through counsel an August 25, 2016,
Board of Veterans’ Appeals (Board) decision denying appellant’s claim that a VA regional office (RO) committed clear and unmistakable error (CUE) in a 1971 decision when it failed to award separate disability ratings for a painful and tender scar and for metallic shrapnel fragments retained in his lower back. This appeal is timely and the Court has jurisdiction to review the final Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will affirm the Board’s August 25, 2016, decision.
I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY
Appellant served honorably in the United States Army from May 12, 1969, to July 2, 1971, including service in Vietnam from April 16, 1970, to June 19, 1970. Record (R.) at 49, 1641. While serving in Vietnam, appellant was struck by shrapnel in the right chest and subclavicular region.
1 The Court uses the word “claim” colloquially throughout. An assertion of clear and unmistakable error is a motion or a request, rather than a claim. Hillyard v. Shinseki, 24 Vet.App. 343 (2011) (citing Rice v. Shinseki, 22 Vet.App. 447, 451 (2009) (“Motions alleging clear and unmistakable error . . . in a prior decision have also often been referred to as ‘claims.'”)). See also 38 U.S.C. § 7111(d) (“A request for revision of a decision of the Board based on clear and unmistakable error may be made at any time after that decision is made”).
After medically retiring on July 2, 1971, appellant applied for service connection and the regional office (RO) assigned a 40% rating under 38 C.F.R. § 4.73, Diagnostic Code (DC) 5303 (1970), for “scar, shell fragment wound residuals, subclavicular region with FCC [(compound comminuted fracture)] right clavicle with right thoracic outlet syndrome.”
2 R. at 1621–22. He was also assigned a 20% rating, under 38 C.F.R. § 4.97, DC 6818 (1970), for “shell fragmentation wound residual, right lung, with retained foreign body.” R. at 1622. On September 17, 1974, VA adjusted appellant’s disability rating and discontinued his 10% rating for vein injuries.
In October 2010, appellant filed a motion to revise the 1971 RO decision because it contained two instances of CUE: (1) the RO failed to issue a separate rating of at least 10% for a superficial, tender, and painful scar from appellant’s shrapnel wound; and (2) it failed to award a separate rating for injury to muscle group XX for shell fragments retained in his lower back. The RO, responding to the CUE motion, found no error, stating that “it was the judgment of the decisionmaker in 1971 to evaluate the residuals of the shell fragment wound as severe to include impairment and pain.” R. at 1770–71. The matter progressed to an appeal before the Board on April 1, 2015. The Board, too, found no CUE in either of the decisions. R. at 265 (“The omission of  separate rating[s] for scar (right clavicle) . . . [and] shell fragment injury to muscle group XX and muscle group XXI in its October 1971 decision was not clearly and unmistakably erroneous.”).
Appellant appealed to this Court, which ultimately granted the parties’ joint motion for remand (JMR), related to his CUE claims for a tender scar and retained shrapnel fragments.
Concerning the scar injury, the JMR stated, “the Board did not articulate why the RO’s actions comported with a permissible interpretation of the law rather than entailed a mere error in its application.” R. at 42. And, concerning appellant’s retained shrapnel, it stated, “the Board erred in not furnishing a statement of reasons or bases” for its finding that the RO’s improper application of 38 C.F.R. § 4.14 was not CUE under the then-existing laws in October 1971. R. at 43–44. On remand, the Board again found that the October 1971 decision did not contain CUE as to either issue and this appeal followed.
2 VA also granted service connection at ratings of 30% for a right thigh scar and 10% for vein injuries. Neither of these ratings are subject to this appeal.
3 Appellant abandoned his claim that the 1974 rating decision contained CUE. See joint motion for remand, R. at 47; see also Cacciola v. Gibson, 27 Vet.App. 45 (2014). As such, this matter is not before the Court.
Appellant’s brief raises three primary arguments. First, he claims that the Board did not comply with this Court’s remand order. Appellant’s Brief (Br.) at 24; Reply Br. at 3–4. Second, he asserts that the RO’s 1971 decision contains CUE because it did not provide a separate rating for his painful clavicle scar. Appellant’s Br. at 16–24. And third, he argues that there is CUE because the 1971 decision did not provide a separate rating for shrapnel retained in his lower back.
Appellant’s Br. at 25–28. The second and third of these questions involve a review of the Board’s finding that the RO in 1971 properly applied then-existing law. The Court will turn to that issue in a moment. But first, the Court will briefly address appellant’s assertion that the Board violated the Court’s February 18, 2016, remand order in the decision on appeal.
1. Compliance with Joint Motion for Remand and Remand Order A remand from this Court confers on appellant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet.App. 268, 271 (1998). Likewise, it imposes upon the Secretary the duty to ensure compliance. Id.; see also Forcier v. Nicholson, 19 Vet.App. 414 (2006). Additionally, the terms of a JMR granted by the Court “are enforceable regardless of whether the Court’s order expressly incorporates them.” Russell v. Shinseki, 25 Vet.App. 26, 28 (2011). The Court has, however, expressed that it does not demand absolute, or even strict compliance—only “substantial compliance.” D’Aries v. Peake, 22 Vet.App. 97, 105 (2008); Dyment v. West, 13 Vet.App. 141, 146–47 (1999).
Appellant argues that the Board failed to comply with the JMR and remand order because it did not “articulate why the RO’s 1971 actions comported with a permissible interpretation of the law rather than entailed a mere error in its application . . . [when] the Board has made clear that no such interpretation of law exists.” Appellant’s Br. at 24. The Court disagrees and holds that the Board did substantially comply with the JMR and remand order. In its August 25, 2016, decision, the Board answered that question quite directly and extensively:
The Board considers 38 C.F.R. § 4.14 to be ambiguous prior to Esteban [v. Brown, 6 Vet.App. 259 (1994)]. It states that “[t]he evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscle, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation.” A reasonable interpretation is that a single evaluation producing the highest scheduler rating is preferred over separate rating in the absence of specific guidance otherwise.
Otherwise, assignment of separate or additional ratings raises the possibility that the overlapping manifestations under different diagnoses would result in duplicative disability compensation and violate 38 C.F.R. § 4.14. Notably, the applicable diagnostic codes do not provide any specific guidance. The guidance for assigning ratings for muscle injuries specifically refers to scars as a consideration in determining the severity of the injury. The Board considers the reasoning that a separate scar disability rating would result in an evaluation of the same disability with a different diagnosis and violate 38 C.F.R. § 4.14 to be a plausible interpretation of the facts and then applicable law. Thus, the RO’s determination that the scar was contemplated within the assigned Diagnostic Code 5303 rating does not constitute an undebatable error. R. at 9–10 (citations omitted).
The Board pointed specifically to the RO’s 1971 decision as a permissible interpretation of § 4.14 (1970). It further explained how that permissible interpretation led to the RO’s omission of a separate rating for appellant’s clavicle scar. The Board reasoned that, based on the ambiguity it saw in the regulation, the RO’s decision was permissible because DC 5303 contemplated scar injuries and because there was no “specific guidance otherwise.” R. at 9. Given the Board’s discussion, appellant’s argument amounts to nothing more than a disagreement with the Board’s finding that the RO’s interpretation was permissible, rather than an argument that the Board failed to comply with the Court’s remand order. Appellant may not agree with the Board’s answer, but it is most certainly an answer. Thus, the Court holds that the Board substantially complied with the JMR and remand order.
2. Separate Rating for Tender and Painful Clavicle Scar Having addressed appellant’s threshold argument that the Board failed to comply with this Court’s remand instructions, we can turn to whether the Board’s substantive decision is erroneous.
Appellant first alleges that the RO committed CUE in its 1971 rating decision by failing to provide him a separate 10% rating for his tender clavicle scar under 38 C.F.R. § 4.118, DC 7804 (1970).
Appellant’s Br. at 16–24. The Court disagrees.
CUE is established when the following conditions are met. First, either (1) the correct facts in, or constructively in, the record were not before the adjudicator; or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994). Second, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet.App. 310, 313–14 (1992) (en banc). Finally, the commission of the alleged clear and unmistakable error must have “manifestly changed the outcome” of the decision being attacked. Id.; see Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999).
The words “clear and unmistakable error” hinge on whether an error is “undebatable.” See Russell, 3 Vet.App. at 313–14. The Court considers an error “undebatable” when “reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.” Andrews v. Principi, 18 Vet.App. 177, 181 (2004) (quoting Russell, 3 Vet.App. 310, 313–14.).
When this Court reviews a Board determination that there was no CUE in a VA rating decisions, the review is limited to determining whether the Board’s conclusion in that regard was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
38 U.S.C. § 7261(a)(3). The scope of review under the “arbitrary and capricious” standard is quite narrow and a court is not to substitute its judgment for that of the agency. In other words, the Court shall not “conduct a plenary review of the merits of the original decision.” Stallworth v. Nicholson, 20 Vet.App. 482, 487 (2006). So long as the Board articulates a satisfactory explanation for its decision, “including a rational connection between the facts found and the choice made,” the Court must affirm. Lane v. Principi, 16 Vet.App. 78, 83 (2002).
In this regard, we note that a failure to apply, or apply correctly, an applicable law or regulation in the decision being collaterally attacked must be shown undebatably.
In the event of such an undebatable error, the Board’s failure to find, in the decision on appeal, such an error would be at least not in accordance with law if not also arbitrary, or capricious, or an abuse of discretion. Joyce v. Nicholson, 19 Vet.App. 36, 43 (2005) (emphasis added) (citing Sondel, 13 Vet.App. at 220 (quoting 38 U.S.C. § 7261(a)(3)(A)). Lastly, the Court is bound by the law as it existed at the time of VA’s 1971 decision. See Russell, 3 Vet.App. at 314 (only the “law that existed at the time” of the prior adjudication can be considered). At the end of the day, the Court must analyze whether the Board was reasonable in its determination that the operation of § 4.14 was “debatable” when the RO issued its rating decision in 1971.
The Court holds that the Board did not err in finding that the RO’s omission of a separate 10% rating in 1971 was CUE and will affirm the Board’s decision. At the time of RO’s 1971 decision, DC 7804 read as follows: Scars, superficial, tender and painful on objective demonstration ——————10
NOTE. The 10 percent rating will be assigned, when the requirements are met, even though the location may be on the tip of finger or toe, and the rating may exceed
the amputation value for the limited involvement. 38 C.F.R. § 4.118, DC 7804 (1970). The Board determined that the 1971 decision did not contain CUE because it found it plausible that the RO relied upon § 4.14 as its basis for not awarding the 10% scar rating under DC 7804. R. at 9–10. Section 4.14 warns against “pyramiding” (“evaluation of the same disability under various diagnoses is to be avoided”), and the Board explained how VA preferred, in 1971, to award the highest single schedular rating over lesser separate ratings. R. at 9.
We now know that a blanket preference for combined, singular evaluations is erroneous when the symptom manifestations are entirely separate and can be rated without overlap. See Esteban, 6 Vet.App. at 262 (“none of the symptomatology for any one of [the] three conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Appellant’s symptomatology is distinct and separate: disfigurement; painful scars; and facial muscle damage resulting in problems with mastication.” (emphasis in original)). Nevertheless, the Board correctly noted, “[s]ince [Esteban] occurred after the October 1971 RO decision, it cannot be considered in determining whether CUE occurred.” R. at 8 (citing Damrel, 6 Vet.App. at 245; Berger, 10 Vet. App. at 170.).
Based on the understanding of § 4.14 as it was in 1971, the Board’s rationale for why the 1971 RO did not commit CUE is reasonable and does not rise to the level of being “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 38 U.S.C. § 7261(a)(3)(A). The Board provided a “satisfactory explanation” for VA’s action, one that is reasonable in light of the then-existing understanding of § 4.14. Specifically, the Board noted that the rating criteria for muscle injuries from gunshot trauma refers to scars as a consideration in determining the severity of the injury. 38 C.F.R. § 4.56 (1970) (“Objective findings. Extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of missile.” (emphasis in original)).
The Board further noted that the preceding regulations of the musculoskeletal system rating section references scars in its criteria. R. at 10. Notably, 38 C.F.R. § 4.48 (1970) was titled “Scars” and read, the most obvious feature of the disability and the starting point for physical examination is the superficial scar . . . [i]ts location, length, width and depth will be described; whether it is painful, inflamed . . . and  to what extent [it] interfere[s] with normal functions.
Based on these regulations for examining and rating musculoskeletal system injuries, it is at least “debatable” whether DC 5303 considers and compensates for scars caused by service-connected muscle injuries.
Appellant disagrees with the Board’s analysis. He argues that § 4.14 should not have been applied in 1971 because the musculoskeletal rating schedule under § 4.56 considered scars for muscle injury rating purposes, but did not provide compensation for the scars’ associated tenderness and pain. Appellant’s Br. at 23 (“When evaluating muscle injuries, the presence of scars in conjunction with certain injuries may impact the rating severity [under § 4.56]. However, [§] 4.56 does not address or account for the conditions or ailments attributable to or associated with the scar itself. Such conditions are addressed under Section 4.118.” (emphasis in original)).
He concludes that § 4.14, even under a pre-Esteban interpretation, should not have prevented him from receiving ratings under both diagnostic codes. Appellant’s Br. at 23.
Appellant’s argument could very well be correct if the Court were considering this matter on direct review. It is not. Instead, the Court is viewing this matter through the lens of CUE. The Board’s answer to the question at hand was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 38 U.S.C. § 7261(a)(3)(A). The Court stresses that the CUE standard does not demand a herculean effort to overcome. Nevertheless, it is a formidable obstacle; the Board need only provide a sufficient explanation for its decision. Because it thoroughly explored the unclear, tenebrous nature of the then-existing regulatory language, the Court must affirm the Board’s finding.
3. Separate Rating for Retained Shrapnel in Muscle Group XX This leaves appellant’s final argument, that the Board erred when it found no CUE in the RO’s 1971 rating decision based on the failure to provide a separate rating for Muscle Group XX pursuant to 38 C.F.R. § 4.73, DC 5321 (1970). Appellant’s Br. at 25–28. This analysis closely resembles that found above, and the CUE standard imposed upon the Court remains. See 38 U.S.C. § 7261(a)(3)(A). To reiterate, VA granted service connection in October 1971 for “scar, shell fragment wound residuals, subclavicular region with FCC right clavicle with right thoracic outlet syndrome” with a rating of 40% under DC 5303. R. at 1621–22. As relevant to this portion of the appeal, it also assigned a 20% rating for shell fragmentation wound residual, right lung with retained foreign body pursuant to DC 6818. Id.; see 38 C.F.R. § 4.97 (1970) (“Pleural cavity, injuries, residuals of, including gunshot wounds.”).
Appellant alleges CUE on the bases that the RO failed to provide a separate rating for Muscle Group XX (DC 5321) despite evidence in 1971, and additional evidence in 1974, indicating that he retained metallic shrapnel affecting his thoracic vertebrae. Appellant’s Br. at 25.
The Court first notes that the evidence of record from 1974 cannot serve as a basis for CUE in a 1971 RO decision. See Russell, 3 Vet.App. at 314 (a determination that there was CUE in a VA decision “must be based on the record and law that existed at the time of the prior  decision”).
Therefore, the Court will not consider evidence not provided to VA until 1974—particularly the xray evidencing a retained metallic foreign body “in the soft tissues just inferior to the left sacroiliac joint.” R. at 1591.
To the extent that appellant’s argument relies solely on evidence the RO considered in 1971, he relies on a September 1970 radiographic report of the lateral chest. R. at 66. Appellant maintains that this report provides “undisputed evidence of record demonstrat[ing] that in 1971 VA knew he retained a ‘metallic pellet intimately associated with the 3th [sic] thoracic vertebrae.'” Appellant’s Br. at 25 (quoting R. at 66). Appellant relies on Myler v. Derwinski, which states that when VA is presented with undisputed evidence of injury to two muscle groups, a failure to rate each muscle group separately is CUE. 1 Vet.App. 571, 574 (1991) (“there is no disagreement that the veteran sustained a through and through gunshot wound . . . thru the lateral border of the quadraceps [sic] group at mid rt. thigh.”). This case is distinguished from Myler because the evidence is not “undisputed,” as it was there, that more than one muscle group was at issue.
The Board explained its finding that the RO did not commit CUE despite the radiographic report:
The evidence before the RO in October 1971 does not show any clear injury manifestation attributable to the sacrospinalis or thoracic muscle groups contemplated by DC 5320 or 5321. The demonstrated manifestations are contemplated by the then-assigned disability ratings for . . . [DC 5303,] muscles of the shoulder girdle and injury to the pleural cavity. R. at 12. The Court finds this reasoning sufficient to justify the Board’s decision. This reasoning most certainly satisfies the “arbitrary or capricious” standard. See 38 U.S.C. § 7261(a)(3)(A). The rating schedule for Muscle Group XXI—DC 5321—governs the rating of injuries to the “muscles of respiration” or “thoracic muscle group.” 38 C.F.R. § 4.73. However, the rating schedule that the 1971 RO used for appellant—DC 6818—provides compensation for residuals of injuries to the pleural cavity, including gunshot wounds. 38 C.F.R. § 4.97. The Board noted in its decision that the radiographic report makes no mention of a specific muscle group that is affected by the “metallic pellet.” R. at 17.
One could argue, as appellant does, that a retained missile “associated with the  thoracic vertebrae” should be rated under Muscle Group XXI (DC 5321 referring to “thoracic muscle group”). R. at 66 (emphasis added). However, one could also argue, as the Board concluded, that residual pain from a retained gunshot wound fragment could be rated under DC 6818. (“Disability persists in penetrating chest wounds, with or without retained missile, in proportion to interference with respiration . . .”). In the end, DC 6818 rates injuries to respiration from gunshot wounds and DC 5321 rates injuries to the muscles of respiration. Reasonable minds may disagree as to which
of these codes, or perhaps both, was appropriate. The judgment call was even more difficult because the only probative evidence before the RO was a vague description of appellant’s injury in a onesentence report. See R. at 66. This does not provide “undisputed evidence” as appellant contends, and the Court will affirm the Board’s finding that the RO’s 1971 decision did not contain CUE.
After consideration of the parties’ briefs, and a review of the record, the August 25, 2016,
Board decision is AFFIRMED.
DATED: November 7, 2017
Travis J. West, Esq.
VA General Counsel (027)